Online Courses
Dec 24th, 2009
We are pleased to announce that the following courses are ready to run and are offered by the respected scholar Ahmad ‘Ali in Johannesburg:
a) A course on Islamic family law. It will start around Friday, 22 January 2010. Each block will consist of 13 weeks’ lessons. It will be done through Dimdim web conferencing, live, with interaction, use of whiteboard, file-sharing, light homework and a final test. Marriage, custody, maintenance and suckling will form the initial course content, to be followed by divorce and other forms of dissolution of marriages. Each lesson will have 1 hour and 15 minutes of “lesson”, and an adequate time, up to some 30 minutes if need be, for question & answer sessions.
b) A similarly structured course on the fiqh of pecuniary transactions, from sale to futures markets and beyond, inclusive of general principles of contract, property, etc.
c) These two courses are offered as a package for $260 or its equivalent, and separately at $150.
d) While the basic dough of a text will be used, and that is Ibn Shaas’ ‘Iqd al-Jawaahir ath-Thameenah, the lessons will transcend the mere boundaries of the text, not just in order to cater for new modes of business, commercial and financial transactions prevailing in today’s time.
e) The text has been selected on the basis that it is a revered primary work which teaches fiqh not through telegraphically cryptic abridgments accessible only to sacerdotal initiates, but in the original way of the first three generations of Islam that plants in the student an ability to “reason things out juristically” (al-malakah al-fiqhiyyah).
f) The purpose is to take the participants to a level where they will be acquainted with what the Sharee`ah requires of them in such crucial fields of human existence, and will be able to act on that, teach it to others and if possible serve as decision-makers for other Muslims in related disputes [In this regard, later the courses will deal with judicial procedures and evidentiary rules in those fields].
g) Islam teaches us that it is essential to know Allah’s judgment in a matter before embarking on it. We daily deal with marital relationships and with pecuniary transactions, be they purchases and sales, rentals, copyrights, credit cards, online sales, mortgages, hiring of services, letting of property, copyrights and trademarks, corporate activities, lending, donations, etc, but hardly do the Muslims know what is demanded from them in those respects, unlike the case of the ‘ibaadaat.
h) The course, while relying in part on a text from a jurist of the school of Ahl al-Madeenah, will deal with all significant areas of disagreement and divergence of views among the various madhaahib of Ahl as-Sunnah, in particular the Hanafi and the Shaafi`i juristic methodologies.
i) Not only the plain rulings will be covered, but even the reasons behind their selection by the fuqahaa’, with further reference both to the qawaa`id or overarching principles of the fiqh and to fataawi embodying those rulings in very practical and concrete particularized settings.
j) They are thus courses meant for all committed Muslims.
k) Two courses on Arabic will likewise be offered. One for beginners’ level, making extensive use of the taught language and the participants’ first language; and the second one for intermediate level of participants who already know the basics of Arabic and have attained some degree of proficiency in it. A Tunisian text with extracts from genuine Arab literature, and escorted by practice exercises and live interaction with the students, will be used for the latter level. This level will go even into the subject of balaaghah.
l) Each level of the Arabic course costs $100. The length etc is the same as per the fiqh courses. The estimated starting date of the Arabic courses is the week of 25 January 2010.
Ahmad ‘Ali
Johannesburg
Which is the website at which these courses can be accessed?
We will post the details as soon as we have them insha’Allah.
This will be ideal for me. Will we receive a recognised qualification or is this just real knowledge?
No qualifications; this is the real thing.
I am working with Sidi Hashiem Dockrat to have the course eventually accredited by UNISA and / or RAU University in South Africa, but that will be part of future endeavours inshallaah
Wa-’alaykumus-salaam,
I’m attaching here the first pair of lessons per course.
NB: As regards the main texts, including the Arabic one with extracts from stories & exercises + the exercises on balaaghah, I’ll scan & send them shortly.
Secondly, the texts, Ibn Shaas & the main text in Arabic from Tunis with stories & exercises, will be gone through during the lessons word by word.
Not everything in the written material will be covered live in the courses. Certain portions will be left for students to read through on their own & pose questions on if need be [They can always also ask me things privately by e-mail].
Space must always be made for live interaction.
Not every lesson will have such detailed written material. In many cases, as done at universities, the participants are tasked with the duty of taking down notes.
Finally, homework consisting of exercises and research, general or specific to certain participating addressees, will be provided at the time of the lessons themselves [Even because by then I would have the feel or would have checked the pulse of participants' progress].
Thanks in advance,
Ahmad ‘Ali
Allaahumma Salli ‘alaa Sayyidinaa Muhammadin wa-’alaa aalihi wa-sahbihi wa-Sallim
The attachments are ready – They will be posted shortly, inshallaah
Lesson 1 (Encompassing weeks 1 & 2)
THE TEXT
Al-Futoohaatu’l-Qudusiyyah fee Sharhi’l-Muqaddimati’l-Aajurroomiyyah by Sidi Ahmad Ibn ‘Ajeebah al-Hasani (d. 1224 A.H.)
a) MATN al-Aajurromiyyah
Al-Kalaamu huwa al-lafzu’l-mukarrabu’l-mufeedu bi’l-wad`, wa-aqsaamu thalaathatun: Ismun, wa-fi`lun, wa-harfun jaa’a li-ma`nan.
b) The grammatical commentary
“Bismillaahir-Rahmaanir-Raheem”
The letter baa’ is attached (muta`alliq) to an eliminated (mahdhoof) word. Every expert in this science has implied that by which the naming is turned for it into a beginning. What is thus implied here is: “I am writing or composing or penning or authoring” (= u’allifu) [in the Name of Allah, the All-Merciful, the Most Merciful]. Such verb is implied as a delayed (mu`akhkhar) word, so as to indicate the restriction of authoring such work to doing it only in His Name, and to indicate the exclusivity of its being composed solely in His Name. The implication is thus: Bismillaahir-Rahmaanir-Raheemi u’allifu.
The letter baa’ in bismillaah is utilized as an instrument of seeking assistance (in and through His Name), isti`aanah, or to denote that the act of authoring the text of the Aajurromiyyah is being escorted by His Name (musaabahah), due to the close association enduring between the composition of the work and His Name .
The wording of bismillaah has been “folded up” when writing (though not when pronouncing it), as a way of compensating for the elimination of the alif (bi-ismi → bismi).
The word ism = noun is derived from the word sumuww or loftiness / highness and elevation according to the Basran school of grammar, since the Name points to the One thus named, and manifests the Named.
Morphologically, its root position is “simwun”. The “laam” of the word (= the waaw) has been eliminated, and as a compensation for that it has been replaced by a hamzah of connection of wasl = ism.
In consonance with the view of the Kufan school of grammarians, instead, the word comes from wasm , which is a distinguishing sign or mark or brand / stamp. It would then be so as the Name is a describing or characterizing indicator of the Named. Pursuant to this interpretation, it is the faa’ of the word (again the waaw) which would have been eliminated, and exchanged with a hamzah of connection.
Whereas for the Basrans the morphological form of the noun ism is if`un, it is i`lun for the Kufans.
The noun Allah is a proper noun indicating His Essence that exists obligatorily, and Which is rightfully entitled to the totality of perfections.
It is the most determinate noun of all determinate nouns according to the bulk of the linguistic experts. It is an “improvised” (murtajal) noun, i.e. a proper noun that is not traceable to the ordinary rules of etymological derivation from a root, or it is derived from one. A disparity of opinions exists on this issue.
Each of ar-Rahmaan and ar-Raheem is a qualificative (sifah) which has been morphologically “constructed” in a hyperbolic form from the verb rahuma (= to be merciful) after it has been switched to the form fa`ula with the dammah or regular vowel u , since the similar quality (sifah mushabbahah) which is made to resemble the noun of the doer (of an action), and which in this case would have been Raahim , is only used for what inadequately fails to reach the full unrestricted goal.
The vast majority of proficient linguists maintain that ar-Rahmaan is more far-reaching in conveying mercifulness than ar-Raheem, since the abundance of morphological structure indicates an abundance of meaning [Fa`laan has more letters than fa`eel, 5 instead of 4].
Views have diverged as to the precise identification of their respective meanings. It has been said that ar-Rahmaan is so in this world and ar-Raheem in the Hereafter. No doubt mercy is more comprehensive in this world, since it encompasses both the mu’min and the kaafir, whereas in the Afterlife it is exclusive to the mu’minoon.
Another view that has been put forward is that ar-Rahmaan is so by the overtly manifest blessings, whereas ar-Raheem is so by the subtle ones which are not readily perceptible.
A third propounded view is that ar-Rahmaan is so by conferring the blessing of origination into existence (from nothing) = eejaad, whereas ar-Raheem is so by lending assisting sustenance for the perpetuation of what has thus been originated = imdaad. This last-mentioned view is the best of them.
Seven different case declensions are permissible in respect of this pair of nouns:
They are both in the case of jarr or reduction, i.e. ar-Rahmaanir-Raheemi;
They are both in the case of raf` or regularity, i.e. ar-Rahmaanur-Raheemu;
They are both in the case of nasb or openness, i.e. ar-Rahmaanar-Raheema;
The latter is in the case of regularity (ar-Raheemu) or in that of openness (ar-Raheema) with the reduction or jarr of the former (ar-Rahmaani). These are two possibilities, 4 and 5;
The former is in the case of regularity and the latter in the one of openness (ar-Rahmaanur-Raheema) or vice versa (ar-Rahmaanar-Raheemu). These represent another pair of possibilities, by which we reach number 7.
It is not permissible to say ar-Raheemi after ar-Rahmaanu in the case of raf` or ar-Rahmaana in the one of nasb, since in the dominant position a succession is not allowed to come after a discontinuance. Ar-Raheemi would follow in case ending the noun Allahi, such case ending having already been interrupted by the raf` or nasb of the noun ar-Rahmaan.
Given that the purpose aspired to by the science of grammatical syntax or nahw is to put speech right by safeguarding it from errors, the author of the text began with it and accordingly said, may Allah have mercy on him:
Al-Kalaamu huwa al-lafzu’l-mukarrabu’l-mufeedu bi’l-wad` =
Speech is the composite verbalization which indicates something intelligibly beneficial in accordance with linguistic usage.
I (= Ibn ‘Ajeebah said):
According to the linguists, speech (al-kalaam) is whatever conveys the intended meaning, be it a verbal utterance or otherwise.
For the grammarians, instead, it denotes what the author of the text alluded to by his statement lafz, i.e. a sound which encompasses some alphabetical letters. By that definition, he cautioned against including in its meaning what indicates a meaning without constituting a verbalization, such as calligraphy or handwriting. The Arabs say: ‘Script is one of the two tongues.’ The author’s said excluding indication thus resembles the following verse of the poet:
{Our eyebrows fulfill the needs among us *
We are silence, while the air above us is speaking.}
The “tongue of the state” is as the poet put it:
{The basin filled up, my cotton said, *
‘Easy, easy, replete is my stomach!’.}
Then there is self-talk. The poet declaimed:
{Speech is in the heart, and tongues *
were only made unto the interior pointers.}
The act of talking to or addressing somebody, takleem, is the original (masdar) of the augmented verbal form kallama, as with the poet’s statement:
{They said, ‘Your talking to Hind as she listens *
heals you,’ ‘Correct, if only it was’.}
The author of the text used the term speech or kalaam to signify the act of talking, which is a meaning, and which consists of letting speech reach the “other”. All these matters I have mentioned are called “speech” in linguistics, but not so in the technical terminology of the grammarians.
What al-Aajurroomi intended by the definite noun al-kalaam is that the al of making definite substitutes for a construction of annexation or idaafah = It is the “speech” of the grammarians, i.e. the speech as understood by them.
It has also been said that the al is used here hyperbolically.
Al-Mubarrad said: “Every speech, be it Arabic or foreign, does not exit the perimeter of these three divisions: a) Verbal wording / verbalization (lafz), composition of words (tarkeeb), and the conveyance of an intended meaning (ifaadah)”.
By his statement “bi’l-wad`” or “in accordance with linguistic usage”, the author excluded from the definition the speech of non-Arabs [given that their linguistic usage would differ].
“Al-murakkab”, “composite” is what consists of two or more words, whether it is explicitly uttered or contextually implied, as with the phrase istaqim = be morally upright, since it does not only include the explicitly articulated verb, but also the implied pronoun of the second person singular, which is the doer of the said verb of command.
It is the same whether the composite speech consists of two nouns [e.g. Ahmadu mujtahidun] or a verb and a noun [e.g. Qaama Zaydun or Dakhaltu’-bayta], or from a verb and two nouns [e.g. Daraba Qaysun Jameelan], or from a verb and three nouns [e.g. ‘Allamani ash-shaykhu at-Tasawwufa], or from two sentences.
By resorting to the term “al-murakkab”, the author took care of excluding from the definitional compass the single word, be it literally, as with kam (= how many) or hal (a letter of interrogation) or bal (= nay, rather), or in terms of the assigned ruling, as with Ba`labakk (the Lebanese city, as it is a single word in which two words have been merged) or Imru’u’l-Qays and Ta’abbat Sharran (two famous Jaahili poets, since each composite noun is used as a proper noun).
Several grammarians, however, have dropped mention of the requirement of the speech being composite or murakkab, since its omission can be dispensed with by the adjective “indicating an intelligibly beneficial meaning” or “mufeed” [given that a word in isolation, such as “kitaab”, full point, is not a speech conveying any intelligible meaning at which the speaker can pause.
■ NB:
It is not a precondition of a composite speech that it should emanate from a single speaker. If it happens that each of two persons articulates a word whereby a listener benefits by the apprehension of a meaning through their combined effect, that would constitute a speech [For example: “Man haaha’l-muallif?”, “Who is this author?” – “Maalik”]. Likewise, it is not required that there should be a single writer for a written sign to be ascribed to him. Ibn Maalik (the author of the famous Alfiyyah) and other grammarians have asseverated the aforesaid.
As for the expression “al-mufeed”, that is, “which indicates something meaningfully beneficial”, it is good for a speaker to pause after the verbalization of a speech which conveys a full self-contained meaning, so that the listener does not wait for something else to complete it.
By resorting to the qualificative al-mufeed, the author took care to avoid incorporating in the definition what is meaninglessly lacking in benefit because it requires some other speech for the meaning to be completed, as in the case of the conditional sentence (If only …) without its answer (then …).
By virtue of the same definitional tool, he further excepted from the definition what is so obvious as to be known to all and sundry, as with a meaningless “the sky is above us, and the earth lies underneath us” or “fire is hot” and “Allah is our Lord” if a mu’min is addressed thereby.
That is what the bulk of the grammarians have stated.
The (Andalusian) Abu Hayyaan has however said: “There is no point in stipulating the requirement that the meaningful benefit extended by the speech ought to be something new to the listener. If that was the case, in fact, it would necessarily follow that one could not define as speech anything the semantic signification whereof was known beforehand, and this inescapable requirement is a nugatory one that has no existence.”
I said: When it comes to giving information about something known, there is no point in verbalizing it unless one searches to achieve blessing or gratification thereby, or an increment in certitude, or so as to warn or give glad tidings when admonishing somebody. There is no harm in mentioning any of that, and it is indeed called “speech” once consideration is paid to its sayer, and Allah the Exalted knows best.
What is denoted by the author’s statement “according to linguistic usage” or “bi’l-wad`” is the linguistic usage of the Arabs, namely, using their wording as an indicator of a meaning. That way, the author excluded from the definition the speech of the non-Arabs, i.e. any speech which is unlike Arabic, be it Hebrew or Syriac or the Berber vernacular named Shalhiyyah or whatever.
Nothing of that is given the appellation of kalaam by the grammarians, since the speakers of those languages do not search for declension (i`raab) or structure (binaa’).
It has also been said that the import of the phrase bi’l-wad` in our author’s definition, is purposive orientation, i.e. it means that the speaker aims on purpose at benefiting the listener. By that, the author removed from the definitional compass the speech of the one asleep and of the drunken person, as well as the conferring by the birds, as nothing of that is referred to as speech.
This restriction, i.e. excluding what has no purposive orientation to convey a beneficial meaning, has been paid due regard to by al-Jazooli , Ibn Maalik(= the author of the Alfiyyah), Ibn ‘Usfoor , and others.
Critics of such qualification have said that it is dispensed with already by the use of the qualificative mufeed. If a beneficial meaning is conveyed to the listener by the sleeping or drunken person, moreover, and the listener is certain about the fact an authentic speech emanated from one of them, the composite verbalization by such an individual is indeed called speech. Al-Azhari said:
“This disagreement deserves to be paid attention to in the context of the disparity of views concerning the semantic indication of speech: Is it an indication based on prevailing linguistic usage, or is it grounded on ratiocination? The latter is the sounder view. Accordingly, the one who knows what semantic connotation is borne by Zayd, and who knows the signification of “standing”, and he hears “Zaydun qaa’imun” with its specific declension, necessarily understands the meaning of such speech.”
What al-Azhari means is that the divergence of opinions as to whether the word al-wad` should be construed as meaning the linguistic usage pertinent to the Arabs, or as signifying a purposive semantic orientation, is ultimately built on the disagreement concerning the indication of meanings by wording: Is it an indication by linguistic usage or by reason? If we state that the indication of a meaning by certain wording issues from linguistic usage, we have to interpret the word wad` as meaning purely the Arabs’ linguistic usage. If, by contrast, we contend that its indication is rational, based on what is implanted in the intellect, we would construe wad` as denoting purposive orientation to benefit the listener.
As for al-Azhari’s view that the latter opinion is the sounder of the two, it calls for a pause of critical reflection. The sounder viewpoint is in fact to say that the indication by speech is grounded on linguistic usage, given that the Arabs, just as they coined words for individual entities, devised sentences to indicate relative shares of things. The differentiation, however, lies in the fact that the coining of words to indicate an individual being is done by coining each and every word denoting a particular named entity, whereas the devising of sentences is effected by genus, i.e. some sentences have been used to indicate relative shares by the Arabs employing certain sentences in speech and by not using other sentences in their talk. Draw then, by what they did not use in their talk, an analogy with the sentences employed in their speech: Once you do that, look at what ash-Shanawaani has to say regarding speech.
If we turn to the word kalim, it is in one respect a collective noun of the genus, i.e. “words generally”. If one says labin it means the genus of bricks, while labinah is one such brick. Nabaq / nabq / nabiq is the genus of nabk or Zizyphus spinachristi; nabaqah is one Christ’s thorn . The least number of words needed to categorize something as kalim is three words, whether they convey an intelligible meaning or not.
Your statement “qaama Zaydun” (= Zayd rose) is a speech, kalaam, [as it consists of two words conveying a beneficially intelligible meaning], but cannot be called kalim. As for your utterance, “in qaama Zaydun” (= if Zayd stands up), it represents kalim (being formed by three words) but not kalaam (since it convoys to the listener no intelligible meaning he can benefit by and after the verbalization of which he waits for no addition].
As regards your statement “qad qaama Zayd” (= Zayd has indeed risen], it is both kalaam and kalim.
Finally, a kalimah is a single word, e.g. Zayd, whereas a statement or utterance, qawl, is generic and encompasses kalaam, kalim and kalimah. If, however, you say “ghulaam Zayd” (= Zayd’s young servant), that can only be a qawl [As it consists of two words, it can be neither kalimah nor kalim, and it is not kalaam as no intelligible meaning is conveyed by it].
Between kalaam and kalim one encounters in one respect both generality and specificity. Al-Azhari has researched this topic after he unified the basic material, so look for it in his opus *, and Allah knows best.
* [The alternate generality and specificity of kalaam and kalim is as follows: The latter is more generally comprehensive in meaning, as it applies to what benefits linguistically and what does not; whereas it is more specific in terms of wording, since it is not applicable to what is composed by two letters. Zayd qaama aboohu (= Zayd’s father stood up) is kalaam due to beneficial meaningfulness and kalim as it consists of four words; qaama Zayd is only kalaam as it consists of two letters indicating a beneficial intelligibility on which one can pause, and in qaama Zayd (if Zayd stands up) is kalim but not kalaam as it indicates no meaningful benefit].
■ NB – The ishaarah or spiritual / Sufic allusion:
With the cleverly sagacious people, speech (al-kalaam) is the verbalization (al-lafz) composed (al-murakkab) by an utterance and a spiritual state, in that the state of the speaker is the state of one who awakens others into brisk activity and whose utterance points to Allah and intelligibly lends benefit (al-mufeedu) to the hearts of the listeners, either by feeding them sciences or lights or secrets.
In the Hikam (of Ibn ‘Ataa’illaah) , it is said: “The lights of the sages precede their statements. Wherever illumination occurs, that is where linguistic expression reaches its goal.”
By the sheer fact that such wording is placed (wad`) in the hearts, it avails an incitement to action without deferment and a yearning for the absolutely purified Presence; or an inducement to a fear deterring away from sinful misdeeds.
The consequential fruit of the aforesaid is that, when speech exits the heart, it falls upon the heart, and it then supplies the benefit of either an unsettling fear or a disquieting longing. When, by contrast, it exits the tongue, its outermost boundaries are merely represented by the ears.
Or you should say: Among the sages, speech (al-kalaam) is the composite verbalization consisting of a statement wedded to an action. If, then, the speech were to be emptied of action, it would provide no benefit whatsoever in the hearts, since then the state (haal) would belie the utterance (maqaal).
That is so in the light of the fact that, if the admonishing speaker had first acted, and then spoken and admonished, his statement would have benefited and his state would have awakened (the listeners). Otherwise, it would be a strike upon cold iron. The poet says:
{O teacher of other than yourself, *
should the instruction at yourself not be aimed first?
To the worn out sick you describe the medication, *
while from the passion of emaciation you do suffer
Intellects I see you fecundating by right guidance, *
as adviser, though of guidance you’re bereft
With your self begin, restrain it from perdition: *
If it stops among the sages you’ll be counted
Then your admonition is accepted, emulated *
is the speech that from you issues, useful teaching
Don’t produce what you veto to creation, *
lest you fall into an ignominy extensive.}
If you prefer, you can say:
The speech which yields a benefit as a return to its sayer is the verbalization (lafz) composed (murakkab) by heart and tongue, which, by being deposited (wad`) in the heart, beneficially avails some illumining or elevating or witnessing, which is the real remembrance by tongue and heart, or by heart and spirit or spirit and secret. This remembrance is the perpetuity of eye-witnessing, or what avails (mufeed) a copiously abundant reward (ajr) and a lovely extension of beneficent goodness (ihsaan). It is the remembrance by tongue and heart if it occurs without a shaykh, or the commanding of what is universally accepted as good (amr bi-ma`roof) and the prohibiting of what is customarily disavowed as wrong (nahy ‘an munkar). Whatever is other than that is but distracting pastime, wasting time in the futile, trivial amusement, useless consumption of one’s lifetime, and engrossment with what is of no concern to a person. Allah the Exalted has said: «There is no good in much of their secret talk, except in the case of those who enjoin sadaqah, or what is right, or putting things right between people» [Soorah an-Nisaa’: 114, 113 in the Warsh riwaayah]. He, peace be upon him, said: “Part of the goodness of a person is to leave what does not concern him.” All of speech is something against and not for you save for the remembrance of Allah and what is close to it in meaning. The following has been stated in the hadeeth: “May Allah show mercy to the slave who keeps silent and attains safeness, or who speaks and attains some booty.”
May Allah have mercy on the following declaimer:
{If speech on analogy were to be made *
of white silver in people’s eyes,
then silence of pure gold would be made.
Understand, the courtesies of quest Allah will teach you.}
I heard our shaykh al-Boozeedi , radiyallaahu ‘anhu, say: “The veracious faqeer utters a single word by which he fulfils 1000 needs, whereas the mendacious faqeer voices a speech made up of 1000 words by which he fulfils a single need.”
In one of the epistles which I wrote to one of the brothers, I said, after some preceding speech: “The seeker of arrival shall not find it unless he is in a state of remembrance or reflective thinking, or is engrossed in the recitation of the Qur’aan or in the performance of prayers, or is reminding others or listening to reminders. His times are populated and his motion and stillness is tangibly felt to be impregnated with sincere devotion. If he articulates a speech, it is by way of remembering of Allah or what approximates one to Allah. He roams about in Allah’s Vast Magnificence or in what draws one near to Allah; and if he clings to silence, it is because he is absent in Allah. If he moves, it is by Allah and to Allah; and if he keeps still, he is with Allah, finding solacing intimacy and fellowship in Allah, totally engrossed with his Lord and away from his self. He has no piece of news to convey about his self, and he can find no settledness with other than Allah. His friendly intimacy is by Allah, and his companionship is with Allah. Taqwaa is his provision, and contentment his bracing prop. His scooping is effected from the sea of gnosis. He has dispensed, by Allah, with anything other than Him, and has cast his world and lustful whims behind his back. He has taken Allah as a companion and put people aside.
In keeping silent from what is other than the remembrance of Allah there are openings of wisdom and secrets that are not tasted save by those who adopt His remembrance as habit and mould their character thereby, and Allah the Exalted knows best.
This is what is connected to creation’s speech (kalaam), be it an overt expression or a symbolical allusion.
As for the Speech (Kalaam) of the Real, Exalted is He, it is a meaning subsisting in itself and by itself, “ancient”, as it has not been brought into being from non-existence at some point in time, ancient that is by the sempiternity of the Essence, transcendentally purified from consisting of alphabetical letters or sounds, from structured composition, advancing or retarding of nouns and phrases, and from all the other varieties of modifiers, and attached, through the attachment of semantic indication, to the attachments knowledge is attached to.
Given that meaning does not manifest save through the senses, Allah created the letters and the sounds as indicators of such meaning. At times, He creates them from inanimate objects, such as trees and their like, for instance, and at other times He creates them out of living beings such as angels, the Adamic form, and other than these two species of creatures.
Just as the Essence does not manifest save in the sensorial manifestations of Divine revelations (tajalliyyaat), the Attributes likewise do not manifest in other than the creational revelations. In the same way, the genus or species of what indicates it is not finite: «Say: ‘If all the sea was ink to write down the Words of my Lord, it would run out before the Words of my Lord ran out,’ even if We were to bring the same amount of ink again» [Soorah al-Kahf: 104 in the Warsh riwaayah]; «If all the trees on earth were pens and all the sea, with seven more seas behind, was ink, Allah’s Words still would not run dry» [Soorah Luqmaan: 27, 26 in the Warsh riwaayah]. Note also the statement of the theologians (mutakallimoon): “Whatever entered existence is finite, and is exclusive to created beings and their attributes.” As for the Essence of the Real, Exalted is He, and His Attributes, they are endless and so is what indicates them. The revelations of the Essence cannot be restricted by computation or by an end; and likewise with the revelations of the Attributes, for they are boundlessly unrestricted and infinite in species and in genus.
The speech of creation comes to an end in terms of its verbalization and species alike, whereas the Speech of the Real is infinite in species even though it might be finite in terms of verbalization. Every word which shines forth into existence comes to an end in itself, since it is created, yet it is not finite in its genus, given that it indicates an endless meaning. If a word terminates from the viewpoint of its verbalization, there is inescapably another word indicating the meaning which has no end, and so on and so forth. That is so since Speech is ancillary to Knowledge, and His Knowledge is infinite. His Speech indicating such knowledge must thus of necessity be endless as well. Yes, the letters and the sounds are created and originated into existence, from non-existence, at some point in time, and that is alluded to by His statement, may He be Exalted: «No fresh (muhdath) reminder comes to them from their Lord (without their listening to it as if it was a game)»[Soorah al-Anbiyaa’: 2]; but the meaning is “ancient” (qadeem) by the sempiternity (qidam) of the Essence, and Allah the Exalted knows best.
AT-TUHFATUS-SANIYYAH BI-SHARHI’L-MUQADDIMATI’L-AAJURROOMIYYAH
by Muhammad Muhyid-Deen ‘Abdi’l-Hameed
1) There are two meanings to the word “kalaam”, one linguistic and the other grammatical. The linguistic speech is an expression for whatever gives rise to a consequential intelligible benefit, be it a verbalization or not, as with calligraphy, writing or a symbolical gesture. For instance, if somebody were to ask you: ‘Have you brought me the book I asked from you?’, and you nodded with your head by motioning with it from top to bottom, it would be understood that you replied ‘yes.’ As for the speech the way grammarians intend it, it is a non-negotiable condition that four requisites should gather in it: a) it must be a verbalization; b) it must be composite; c) it must be intelligibly beneficial; d) it must be employed according to the linguistic usage of the Arabs;
Examples of composite wording which indicates no intelligibly beneficial meaning: Madeenatu’l-Iskandariyyah; ‘Abdullaah; Hadramawt; law-ansafan-naasu; idhaa jaa’ash-shitaa’u; mahmaa akhfaa al-muraa`i; in-tala`atish-shamsu.
2) The meaning of its being a verbalization (lafz) is that it ought to be a sound comprising some letters of the alphabet, which range from alif to yaa’. Examples thereof are Ahmad, yaksibu (= he earns), and Sa`eed. Each one of these three words, when pronounced, represents a sound encompassing four alphabetical letters. A gesture of symbolical allusion like the aforementioned one of nodding with one’s head, for example, is not termed speech by the grammarians, as it does not consist of a sound comprising some letters, even though, for the linguists, it does amount to a speech given that intelligible benefit is attained thereby;
3) What is intended by its being composite or murakkab is that it must consist of two or more words, such as Muhammad musaafir (= Muhammad is a traveler), al-‘ilmu naafi` (= knowledge is beneficial), yablughu’l-mujtahidu’l-madha (= the diligent self-striving person attains eulogizing praise), li-kulli mujtahidin naseebun (every person exerting his independent reasoning to the fullest is entitled to a share of the reward), and al-‘ilmu khayru maa tas`aa ilayhi (= knowledge is the best thing you can strive after). Each one of these expressions is named speech. Each one of them is composed by two or more words. The single word, by contrast, is not called speech by the grammarians except if other words are conjoined to it, whether such conjoining be literal, as with the afore-stated examples, or is the product of necessary implication, as in the case that somebody were to say to you, ‘Who is your brother?’, and you were to answer: ‘Muhammad.’ This latter word is regarded as a speech, since the full sentence, including what is implied, is: Muhammadun akhi (= Muhammad is my brother), which is an expression composed of three words (Muhammad, akh, and the yaa’ of the first person singular);
4) The signification of its being intelligibly beneficial or mufeed is that there is excellence in the pausing by the speaker at the end of it, to such an extent that the listener waits for nothing more. If you were to say, idhaa hadara’l-ustaadhu (= if or when the teacher comes), such statement is not defined as a speech, due to the fact that the addressee waits for what you have to say after it which indicates what would or did consequentially happen following the arrival of the teacher. By contrast, had you said, ‘idhaa hadara’l-ustaadhu ansatat-talaameedhu (= when the teacher arrived, the pupils kept quiet), that would have turned into a speech since the benefit of an intelligible meaning would have been communicated by it;
5) Turning to what is meant by its being forged or employed according to the linguistic usage of the Arabs, the signification thereof is that the words made use of in the speech have to be the words which the Arabs have coined to indicate a particular meaning. For example, hadara is a word coined by the Arabs to express a meaning, i.e. the occurrence of the act of arriving or being present in the past tense. Likewise, the word Muhammad has been coined by the Arabs for the sake of a meaning, i.e. the very being of the person named by such a name. If you were to say hadara Muhammadun, you would have employed two words, each of which is part of what the Arabs have coined (in their lexicon or linguistic usage), unlike the scenario where you spoke via some speech forged by non-Arabs, such as Persians or Turks or Berbers or French. Any such speech is not termed kalaam in the technical usage of the Arab savants, though the users of such foreign language do refer to it as a speech.
6) Examples of speech fulfilling all the said four requisites: a) Al-jaww sahwun (= The weather is sunny and cloudless); Al-bustanu muthmirun; al-hilaalu saati`un; as-samaa’u saafiyatun; yudee’u’l-qamaru laylan; yanjahu’l-mujtahidu; laa yuflihu’l-kasoolu; laa ilaaha illallaah; Muhammadun safwatu’l-mursaleen; Allaahu Rabbunaa; Muhammadun Nabiyyunaa.
7) Examples of simple (non-composite) verbalization (al-lafzu’l-mufradu): Muhammad; ‘alaa; Ibraaheem; qaama; min.
9) Questions arising out of this explanation: i) What is speech? ii) What is the meaning of its being a verbalization?; iii) What is meant by its being intelligibly beneficial? iv) What is understood by the requirement that it should be composite? v) What is the signification of its being forged in accordance with the linguistic usage of the Arabs? vi) Supply five examples of your own which would be termed speeches by the grammarians.
SHARH QATRIN-NADAA WA-BALLIS-SADAA
by Ibn Hishaam al-Ansaari
Al-Kalimatu qawlun mufradun = The word is a simple, non-composite verbalized speech.
In the Arabic language, the word kalimah is used to denote intelligibly beneficial sentences one can pause at the end thereof, that being the meaning of such word conveyed by His statement, Exalted is He: «No indeed! It is just a speech (words) he utters» [Soorah al-Mu’minoon: 100, 101 in the Warsh riwaayah], which is an allusion to His preceding statement [aayah 99, 100 in the Warsh riwaayah]: «‘My Lord, send me back again, so that perhaps I may act rightly regarding the things I failed to do’»; and, in the technical vocabulary, it is employed to signify a non-composite, single unit of verbalized speech (qawl), i.e. a verbalization (lafz) that indicates a meaning, such as “rajul” (= a man) and “faras” (= a mare).
What is meant by verbalization or lafz is a sound comprising some letters of the alphabet, whether it conveys a meaning, e.g. Zayd, or it does not, such as the case with Dayz, the inverted verbal form, which bears no meaning in Arabic. It has thus become clear from the aforesaid that every qawl is a lafz, but not vice versa [since a wording which indicates no meaning like Dayz is not a qawl though it is a lafz].
The signification of non-composite or mufrad is that the part whereof does not indicate part of its meaning. The like of that is the word Zayd. Its constituent parts are the letters zaay, yaa’ and daal – Were they to be viewed separately, none of them would indicate any thing of the meaning indicated by the combination of those three letters. That is the opposite of your statement “ghulaam Zayd” (= Zayd’s young servant), since each of its constituent parts, the ghulaam and Zayd, indicates part of the meaning of such utterance. This statement is thus termed composite or murakkab, and not mufrad .
FACILITATING RECAPITULATION
Kalimah & kalaam
1) Al-kalimah (The word)
a) الباء، في، عن، إلى، لكن، كأن
b) فَهْد، كتاب، طائر، صَحيفة، فِرْدَوْس، اسْتِقْلال
c) شَهِد، دَحْرَجَ، اِنْتَصَرَ،اِسْتَغْفَرَ
The first group (a) contains letters (huroof), made of one alphabetical letter, two, three, four or five.
In the second group (b), we encounter nouns (asmaa’) consisting of three, four, five, six and seven letters.
The third group (c) comprises verbs (af`aal), made up of three letters, i.e. a trilateral verb, or four, i.e. a quadrilateral verb, or five and six, that is, verbs consisting of five or six consonants.
It is only when one alphabetical letter, say the faa’, gets connected to another one, e.g. the meem, that a word (fam = mouth) is originated.
Every verbalization listed in those three groups is called a word or kalimah.
The word or kalimah is thus the verbalization (lafz) indicating a single, non-composite (mufrad) meaning. Such verbalization consists of one, two, three, four, five, six or seven alphabetical letters (huroof).
By saying “indicating a meaning”, we have excluded from the definition the discarded (muhmal) verbalization, one that is which is devoid of meaning, as in the case of ramu`a (رمع), the inverted form of ‘amura (or Ruma`# ‘Umar, etc), or in the instance of Dayz. The said two ostensible “words” (kalimatayn), though they represent a pair of verbalizations (lafzayn), do not indicate any meaning.
Through our phrase “a single, non-composite meaning”, we have removed from the sphere of the said definition both the speech or kalaam and the kalim, given that, though each of them does or can indicate a meaning, it indicates a composite (murakkab) one, e.g. by the interrelation of primate (mubtada’) and predicate (khabar) in the nominal sentence (jumlah ismiyyah) “Muhammadun muhadhhab” (Muhammad is of refined manners), or the interrelation of verb and agent thereof (fi`l and faa`il) evident in such verbal sentence (jumlah fi`liyyah) as “hadara Muhammadun” (Muhammad came / arrived or was present / attended).
A word thus conveys a meaning, but it is a partial (juz’i) one = non-composite. From fam or mouth we understand such partial, stripped down meaning, but nothing more. It is only from the interconnection of two or more words that the composite meaning, which is the one studied by nahw, emanates.
The term kalimah or word is thus employed to denote what gathers the following qualifying characteristics:
a) The articulation of verbal sound or nutq. THE ENTIRE STUDY OF GRAMMAR IS DEVOTED TO ACTUAL VOICING OF VERBALIZED SOUND, AND NOT TO WRITTEN SCRIPT;
b) Such verbal articulation must indicate a meaning. We are thus unconcerned with what is linguistically meaningless;
c) It must be a non-composite articulation;
It is at the same true that, metaphorically (through the synecdoche of the part signifying the whole), the word kalimah might sometimes be employed to denote an abundant speech, be it a sentence or some form of linguistic expression or a poem such as a qaseeedah or a public lecture (khutbah).
For example, apart from the afore-quoted example of the pair of aayaat in Soorah al-Mu’minoon, Allah the Exalted has said: «[Y]our Lord gives you good news of a word (kalimah) from Him. His name is the Messiah»[Soorah Aal ‘Imraan: 45].
In a similar vein, the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, has said: “The most truthful verse or statement (kalimah) declaimed by a poet is Labeed’s utterance: {أَلا كُلُّ ما خَلا اللهَ باطِلُ / وَكُلُّ نَعيمٍ لا مَحالَةَ زائِلُ}({Pay attention: Whatever is other than Allah is nugatory, * and every bliss, undoubtedly, is vanishing}).”
Likewise with our metaphorical statement, ‘The chancellor delivered a “kalimah” at the ceremony for the inauguration of the new academic year.’
2) Al-qawl (The intelligible verbalization)
It is for some the verbalization or lafz that indicates a meaning, such as rajul and faras. For other scholars, it is every verbalization articulated by the human being, whether simple or composite, and whether its composition indicates a beneficial meaning or not. It is thus applicable to kalimah, kalim, kalaam, and a compound of two words such as “inna Misr” (Egypt is indeed) which is not a kalimah, not kalim and not kalaam. This is the better view, shared by modern scholars and many classical ones such as Ibn Hishaam: It is a verbalization indicating a meaning. There is no alternate generality or specificity to it. It is exclusively generic.
3) Al-lafz (The verbalization)
It is the articulation of a sound comprising some letters of the alphabet, whether such sonic combination indicates an intelligible meaning (as with Zayd) or not (as with Dayz).
It follows from the above that every qawl is a lafz, but the contrary is not true, since every sonic combination of words which avails an intelligible meaning is a qawl, whereas what avails none is not called qawl but only termed lafz.
4) Al-mufrad (The single, non-composite)
It means that the part whereof does not indicate part of its meaning, in the sense that the three alphabetical letters making up the word Zayd, examined in isolation, indicate no part of the meaning thereof, unlike the two components of the phrase “ghulaam Zayd”, which is a composite (intelligible) verbalization.
5) Al-kalaam (The speech)
اللهُ مَوْجودٌ
اللهُ نورُ السَّماواتِ والأَرْضِ
……………………..
نُجَحَ محمّدٌ
يُذاكِرُ محمّدٌ
اُشْكُرِ اللهَ
If we cast a look at the preceding sentences we discover that every one of them is called a speech. If we focus on the meanings they convey, we find that every one of them communicates a self-containing meaning which is complete in itself, and at the end of which a speaker can appropriately and legitimately pause, the listener thereto being able to extract the understanding of it without needing anything further said, for him to grasp its signification.
They might consist fundamentally of two nouns, one connected syntactically to the other, as in the first pair of examples. Those are nominal sentences; or they might be constituted, essentially, by an interconnected verb and noun, which is the case with verbal sentences.
If we examine the latter trio of sentences or specimens of kalaam / speech, we notice a pairing of past (maadin) verb and doer, which from now on we shall call the “agent” (faa`il), since it is a more accurate nomenclature; of verb of conform mood (mudaari`) and agent [We shall strictly avoid the non-Arabic terms “present tense” or “imperfect”]; and of imperative (amr, the verb of command) and the concealed noun being the pronoun of the second person singular which is the agent of the imperative, followed by a direct patient (maf`ool bihi) [rather than direct object], which is the Name of Majesty Allah.
SPEECH OR KALAAM IS ACCORDINGLY THE VERBALIZATION AVAILING AN INTELLIGIBLE MEANING ON WHICH IT IS FINE TO PAUSE. The availing of an intelligible meaning has the effect of eliminating from the definition the semantically unintelligible prattle which communicates no meaning; and the recourse to the phrase “on which it is fine to pause” removes from the ambit of its application what avails no complete (and self-contained) intelligible meaning, such as:
إِنْ قامَ مُحَمَّدٌٌ
هَلْ خَرَجَ
which are divested respectively of the answer to the condition in the first example and of an agent of the verb in the latter one.
We could likewise define it as: What is composed of two or more words, and which possesses an intelligible beneficial meaning that is independent in itself (mustaqill), i.e. self-contained or self-sufficient.
Speech or kalaam thus needs the coming together of two inescapable elements: a) Composition or tarkeeb, and self-sufficient indication of an intelligibly beneficial meaning (ifaadah mustaqillah). Thus, if you say faaza (he triumphed or was victorious), it is not kalaam as it is not composite or murakkab; and if you say faaza fee Yawmi’l-Khamees (he won on Thursday), it is likewise not kalaam since, in spite of its being composite, it does not indicate a beneficial meaning which can suffice both the speaker and the listener.
The composite meaning (ma`naa murakkab) or complete meaning (ma`naa taamm) or beneficial meaning (ma`naa mufeed) or the meaning on which it is fine to pause (al-ma`naa alladhi yahsunus-sukootu ‘alayhi) is thus one and the same thing, and it is what syntax or nahw is concerned with. What the grammarians intend by it is that the speaker deems the intended purpose of the his interconnection of words as having been fully attained, so that he can fittingly pause; or, put it differently, the listener is adequately satisfied with it and requires no further speech, unlike the case with the “partial” meaning. With the simple, non-composite meaning, as “bayt” (house) no more, the speaker cannot legitimately pause after verbalizing it, as he knows that he has not extended to the listener the benefit which the latter was anticipating to be the result of the speech, nor can the listener feels that what he heard of the partial meaning suffices him, since he demands some addition thereto. Hence, one cannot say about the single kalimah (= the single unit of verbalization consisting of some alphabetical letters which indicates a partial, i.e. non-composite meaning) that its benefit is complete. A perfected meaning derives from an interconnection of partial meanings and never from a single example thereof.
Moreover, if the kalimah does not indicate a (partial) Arabic meaning, it is not referred to as more than mere sound.
6) Al-kalim (The genus of words: Three or more words)
It is the plural of the word kalimah. It is the composite verbalization consisting of three or more words, whether it indicates a meaning or not, for instance:
أَنْ قامَ مُحَمَّدٌ
وَلَيْسَ محمّدٌ
وَإِنَّ عَلِيّاً في
none of which indicates a meaning, or, by contrast
مُحَمَّدٌ رَسولُ اللهِ
الطّالِبُ يُذاكِرُ الدُّروسَ
7) Al-kalaam (Speech)
It is the verbalization availing an intelligible meaning on which one can fittingly pause =
هُوَ اللَّفْظُ الْمُفيدُ فائِدَةً يَحْسُنُ السُّكوتُ عَلَيْها
Example:
جاء محمّدٌ
نَجَحَ زَيْدٌ وَعَمْرٌو
It is therefore clear that speech or kalaam is wider and more generally comprehensive than the kalim. The latter is what consists of three or more words, whereas the latter comprises everything on which it is fitting to pause, whether it consists of two letters or more [In due course, we shall see that a sentence is more specific in its semantic connotation than a speech].
NEXT LESSON, INSHALLAAH, WE SHALL TACKLE THE SUB-DIVISION OF THE WORD OR KALIMAH INTO ITS THREE SPECIES:
NOUN (ISM), VERB (FI`L), AND LETTER (HARF) [We shall unfailingly avoid the use of the contextually inaccurate English term particle], and we have our first dip in the turbulent waters of Arabic morphology or sarf / tasreef.
Before we leave, one last point:
Nahw comes from nahaa ilas-shay’ = he inclined towards the direction of such thing and purposively directed himself towards it. It is the science that studies the word when it enters a speech construct or composite speech.
AL-BALAAGHATU’L-WAADIHAH
by ‘Ali al-Jaarim & Mustafa Ameen
At-tashbeeh (Simile)
Its pillars (Arkaan)
Examples:
1) Al-Ma`arri said in a panegyric:
أَنْتَ كَالشَّمْسِ في الضِّياءِ وَإِنْ جا … وَزْتَ كَيْوانَ في عُلُوِّ الْمَكان
Vocabulary: Diyaa’: Luminosity, brightness – Kaywaan: The planet Saturn (better known as Zuhal) – ‘Uluww: Elevation, loftiness, highness – Makaan: Place, location, site, spot
2) Another poet declaimed the following:
أَنْتَ كاللَّيْثِ في الشَّجاعَةِ والإِقْ …دامِ وَالسَّيْفِ في قِراعِ الخُطوب
Vocabulary: Layth: Lion [It also means hardness, potency and the daring person] – Shajaa`ah: Bravery, undaunted valiance, intrepidity – Iqdaam: Advancing, approach(ing) – Sayf: Sword – Qiraa` al-khutoob: Felling calamitous hardships, mishaps and adversities, and overpowering them by counter-struggle
3) Yet a third poet said:
كَأَنَّ أَخْلاقَكَ في لُطْفِها … ورِقَّةٍ نَسيمُ الصباح
Vocabulary: Akhlaaq: Character, the sum total of one’s tempers or qualities – Lutf: Subtly-encompassing gentleness, friendly kindness – Riqqah: Elegantly refined thinness, mellowness and graciously amiable tenderness – Naseem as-sabaah: The gentle breeze of the early morning
4) Finally, a fourth one declaimed what follows:
كَأَنَّما الْمَساءُ في صَفاءٍ … وَقَدْ جَرَى ذائِبُ اللُّجَيْنِ
Vocabulary: Masaa’: Evening – Safaa’: Uncontaminated, unadulterated purity – Qad: It emphatically reinforces the occurrence of the action of the verb in the past – Jaraa: Flowed – Dhaa’ibu: An element which is melting or dissolving, liquefying or deliquescing – Lujayn: Silver.
Analysis:
In the first verse, the one penned by the great litterateur Abu’l-‘Alaa’ al-Ma`arri, the poet informed that the person he is heaping encomiums upon has a resplendent face, and an outward appearance shining like a pearl. As the poet wanted to refer to a like of the target of his praise whereby the said attributes, being coruscating effulgence and burnishing radiance,
could stand out more, he excogitated the poetical resort to what he found to be the epitome of such qualities, i.e. the sun. He thus compared the one he was commending to it, and, to alert the listener / reader to such comparison, he made use of the clarifying instrument of the letter kaaf in kash-shamsi.
As for the second verse in the aforesaid list of illustrating examples embodying the foundational pillars of similes in Arabic rhetoric, the poet saw the person he was lauding in his panegyric as being characterized by two descriptive qualities, that is, dauntless courage and the ability to overwhelm misfortunes in a straight combat. He then searched for two similar “peers” for such pair of laudable attributes, each one of which would be able to strengthen the effect of the addressee’s praiseworthy traits, and he thus likened him, respectively, to the lion in intrepidity and to the sword in the capacity to felling one’s opponents. He then made such comparison transpicuous in its clarity by the medium of a lexical tool, which is once again the letter kaaf (kal-layth: as for as-sayf, the kaaf is read before it by implication as kas-sayf, because of the conjunction of the latter to the former).
Let us now turn to the third verse: Therein, the poet found his friend’s character to be gently mild and softly mellow, and subtly encompassing in its friendly gentleness, such that the self is put at ease by it. He planned to come up with a like wherein the said quality could shine forth and become more firmly entrenched. He deemed the gentle breeze of the morning to be the appropriate “similar”, and thus established a comparison between the two of them, which he fastened by the use of the letter ka’anna right at the beginning of the verse.
Finally, if we turn to the fourth such poetical example, we notice that the poet strove to devise a like for pure water, in which like the quality of distilled purity of the water could become consolidated. He beheld such like in the melting silver, since depurated purity purged of any element tarnishing it is prominent in the liquefying form of silver. The simile he drew between the two of them was anchored by him through the use of the letter ka’anna (the maa in ka’annamaa is in fact purely augmented or zaa’idah).
Therefore, one can discern, in each of the afore-quoted four verses, that something has been made the like of something else in respect of a qualifying attribute they both share in, and that the medium employed to indicate such similarity or “near-equivalence” is an implement, be it the kaaf or ka’anna.
This is what is called simile or tashbeeh.
It ineluctably consists of four pillars:
i) The thing which you want to compare to something else, called al-mushabbah (the likened). In our examples, it was, respectively, the addressee of the first two verses, the character of the addressee in the third one, and the evening in the fourth and last verse;
ii) The thing it is likened to, i.e. al-mushabbah bihi [In our illustrations: a) The sun; b) the lion and the sword; c) the gentle breeze of the morning; d) the deliquescing silver]. The first two pillars are called the two sides of the simile (tarafay at-tashbeeh);
iii) The qualificative aspect that is shared by the pair of them, called wajh ash-shabah, i.e. the linking aspect or mode of resemblance. In our fourfold illustration, a) glowingly lucent luster; b) daring valiance and successfully wrestling the opposition of misadventures; c) subtly-encompassing gentleness and refined mellowness; d) crystal-clear purity. The shared attribute must, of necessity, be more pronounced in the mushabbah bihi, what something is likened to, than in the mushabbah, as evident from the said tangibly embodying examples [For instance, the sun is more lustrously sheeny than the addressee of al-Ma`arri’s verse];
iv) The tool or implement of comparison, adaatut-tashbeeh, which is the like of the kaaf and ka’anna [The instrument of the simile can be a noun, as with shibh, or mithl, or their synonyms, or a verb, e.g. yushbihu, yumaathilu, yudaari`u, yuhaaki, yushaabihu, or a letter (harf), as in our exemplifying verses hereabove].
Every simile must contain the two sides thereof. However, it might happen that what is likened, the mushabbah, is eliminated from the speech, i.e. it is not explicitly mentioned but rather implied, due to the antedating knowledge of what it consists of. In the declension, it is thus implied. Its implication is tantamount to its actual existence in the speech. That occurs, for instance, if you were to be asked, ‘How is ‘Ali (= Kayfa ‘Ali)?’, and you replied, ‘like the withering flower = kaz-zahratidh-dhaabilah.’ The phrase “kaz-zahrah” is in fact the predicate or khabar of an eliminated primate or mubtada`, which is implied as the third person singular pronoun huwa = Kayfa ‘Ali? Huwa kaz-zahrah, where the mushabbah huwa, the pronoun (or more accurately, the personal or dameer), is eliminated from the speech and implied, unlike the mushabbah bihi, the word az-zahrah, which necessarily has to be mentioned explicitly.
On occasions, the comparative mode or wajh ash-shabah is eliminated (mahdhoof), and in other instances the tool of simile is omitted from the express verbalization.
We shall see that in due course .
Overarching rules:
1) At-tashbeeh or the simile is the elucidation of the fact that one or more things share with something else one or more qualifying attributes, via an implement such as the letter kaaf and the like thereof, be it explicitly voiced or tangibly felt (and thus implied).
2) The pillars of tashbeeh are four: Al-mushabbah (= that which is likened) and al-mushabbah bihi (= that which it is likened to), which are called, as a unified pair, the two sides of the simile (= tarafay at-tashbeeh); the tool of comparison (adaatut-tashbeeh) and the linking aspect of comparison (wajhush-shabah). The linking aspect of comparison must be more potent in the mushabbah bihi than in the mushabbah.
Exemplary illustration:
Once again al-Ma`arri said:
رُبَّ لَيْلٍ كَأَنّهَُ الصُّبْحُ في الْحُسْ … نِوَإِنْ كانَ أَسْوَدَ الطَّيْلَسان
***
وَسُهَيْلٌ كَوَجْنَةِ الْحِبِّ في اللَّوْ … نِ وَقَلْبِ الْمُحِبِّ في الْخَفَقان
Vocabulary:
1 – Layl: Night – Subh: The early morning between dawn and sunrise – Husn: Personable beauty, exquisite comeliness, pulchritude – Aswad: Black – Taylasaan: A broad garment of Persian origin, traditionally worn by the elite ‘ulamaa’. The plural is tayaalis or tayaalisah .
2- Suhayl: Canopus (an astronomical word). Canopus is the brightest star in the constellation of Carina and Argo Navis, and the second brightest star in the night-sky, after Sirius. The light of Canopus inclines towards redness and is accompanied by shaking agitation – Wajnah: Cheek – Hibb: Beloved – Muhibb: Lover – Khafaqaan: Unsettling palpitation.
وَجْهُ الشَّبَه الأَداة المُشَبَّه بِهِ المُشَبَّه
الْحُسْن
اللَّوْنُ والاحْمِرار
الخَفَقان
كّأَنَّ
الكاف
الكاف “مُقّدَّرَة”
الصُّبْح
وَجْنَةُ الْحِبِّ
قَلْبُ الْمُحِبّ الضَّميرُ في كَأَنَّهُ
الْعَائِدُ عَلَى اللَّيْلِ
سُهَيْلٌ
سُهَيْلٌ
Some examples from the Qur’aan:
«فيهِنَّ قاصِراتُ الطَّرْفِ لَم يَطْمِثْهُنَّ قَبْلَهُمْ إِنْسٌ وَلا جانّ … كَأَنَّهُنَّ الْياقوتُ والْمَرْجان»
[Soorah ar-Rahmaan: 56-8, 55-57 in the Warsh riwaayah]
«In them are maidens with eyes for them alone, untouched before the
by either man or jinn (…) Like precious gems of rubies and pearls»
«وَالْقَمَرُ قَدَّرْناهُ مَنازِلَ كالْعُرْجونِ الْقَديم»
[Soorah Yaseen: 39, 38 in the Warsh riwaayah]
«And We have decreed set phases for the moon, until it ends up lookin
like an old palm spathe»
«نِساؤُكُمْ حَرْثٌ لَكُمْ قَأْتوا حَرْثَكُم أَنَّى شِئْتُمْ»
[Soorah al-Baqarah: 222, 221 in the Warsh riwaayah]
«Your women are fertile lands for you, so come to your fertile fields
however you like».
In the first aayah Allah compared the Hoor ‘Een residing in the pavilions
of the Garden to some precious stones, i.e. gems of rubies and pearls,
the shared quality between the two of them being unpolluted purity
of colour.
In the second aayah He likened the moon, after the completion of
its orbit, in its shiningly resplendent night, which has dispersed the
nightly layers of darkness, to an old palm spathe in its thinness, slimness,
and sideways bending .
As for the third aayah, He drew a simile between women and the land
ploughed to cultivate crops therein, given that offspring is a planted in
a woman’s womb the way the seeds are planted
underground, and in the light of the fact that in both of them there is
increment, populating the earth and thriving prosperity.
The fiqh of pecuniary transactions –
Lesson 1 (Encompassing weeks 1 & 2)
NB: Not everything found in the written material will be gone through during the lessons; some of it will be left to participants to further their understanding by, though everything in the shared files can be the subject of questions and answers, discussions, and elucidations.
Moreover, this is a once-off detailed note-taking. Parts of the other lessons will be left to the participants to record in their own handwritten notes.
NB: The formulating of practice exercises & “homework” will be done at the time of each lesson.
Intro
1) In his superb 6-volume collection of fatwas, the Tunisian jurist al-Burzuli (d. 841 A.H.) mentioned that acquiring knowledge of the fiqh of pecuniary transactions (buyÙ` et al) was incumbent even on young boys (sibyaan), let alone on adults.
Dr. al-Ghiryaani, in the first answer to a question on modern transactions or mu`aamalaat collated in a recently published text, stressed that it was an individual obligation or fard ‘ayn to know the ruling or hukm of a matter before embarking on it. He thus concluded that being conversant with the judgment about a form of pecuniary transaction had to precede the carrying out thereof, as the person who learns and then acts by his knowledge is rewarded by Allah twice.
Yet most present-day Muslims currently enter into multifarious pecuniary transactions on a quotidian basis without knowing or even bothering to know what is required of them in any such undertaking.
There has thus been an unfortunate surgical division, Christian-like, between the realm of spirituality, worship and moral conscience, and the dimension of everyday man-to-man transactions. Goodness is sought in the former and bypassed, often crudely so, in the latter.
Yet, demonstrably, it is precisely through modes of manipulation of transactional units that the Muslims have been subjugated and the world faces at present a crisis leading to possible planetary implosion.
The Companions, radiyallaahu ‘anhum, remarked that they were more meticulous in adhering to the details of the mu`aamalaat than those of the ablution, as the former were harder on their selves than the latter, and that notwithstanding the high rank possessed by wudoo’ as we are all aware of.
2) This course is thus geared towards equipping the dedicated Muslim in the West and other similar political settings with revitalizing knowledge of the classical fiqh of pecuniary transactions, acting by it, transmitting its understanding, and judging by it.
What we mean by classical fiqh is a fiqh which is traced back to the pristine source of triumphant Islam, purged of apologetic modernist accretions, while being flexible enough to cater for the changing circumstances of life.
3) In this respect, we shall become acquainted, in the course thereof, with what is money, what is “property” that can be the subject matter of contracting, what is a contract and its ingredients, what are debts, ownership, possession and usufruct, legal capacity, other overarching concepts, and the entire spectrum of transactional units, from the most elementary and uncontaminated, sale, all the way down to its most convoluted and usuriously immoral, such as contracts in futures and derivatives trading (via lease of property and trademarks, pledge and time shares, endowments and modern corporations, donations and insurance, torts and tawarruq, insolvency and sale of goodwill, etc). As for zakaat, it can either be made a self-contained part of this course or the subject of an independent one, depending on participants’ preferences.
4) In consonance with the classical articulation of juristic discourse in this field, we shall inaugurate the lessons by a treatment of the paradigmatic legitimate contract, the one of bay`. That does not necessarily entail, however, that we shall be bound by the style and sequence of treatment of this section of the fiqh by our juristic predecessors from Ahl as-Sunnah wa’l-Jamaa`ah.
A. BEYOND THE TEXT
BRIEF DEFINITION OF CONTRACT (‘AQD)
The classical Arabic term ‘aqd, or the act of tying a (juristic) bond, is synonymous with the word “contract” which one encounters in modern law.
A good definition of it, taken from a renowned text on Hanafi fiqh, is that of “a legal relationship created by the conjunction of two declarations, from which legal consequences with regard to its subject matter flow” [Cf. Al-Baabarti’s Al-‘Inaayah ‘alaa Fathi’l-Qadeer].
This definition succeeds in including all the fundamental ingredients of a contract, namely, a) an agreement based on offer and acceptance (implied by the reference to a duality of declarations), b) the existence of two contracting parties (likewise ramifying from the aforesaid), c) the completion of an offer and an acceptance in a legal manner, entailed by the expression “a legal relationship” resulting from the conjunction of declarations by two human sources, and d) the object of the contract.
As for b), there has to be two parties to a contract as no contract can be concluded through a unilateral declaration. An endowment or waqf, which is dealt with in our fiqh of pecuniary transactions as it involves the disposal of a patrimonial asset, comes into being through a unilateral declaration, just as a dissolution of marriage by a divorce pronouncement or talaaq does, and can thus not be referred to as a “contract” or ‘aqd.
Turning to ingredient a), an outward act portraying and manifesting the parties’ internal willingness to enter into a contract has to issue forth into existence, and that is done by offer or eejaab and acceptance or qabool.
Then (and here we move within the orbit of c)) there must be a legal union between the two declarations, i.e. the offer and acceptance are required to agree with each other in the manner prescribed by the Sharee`ah.
Finally, the effects of the conjunction of the two declarations, of the offer and the acceptance, must appear in the subject matter. In a contract of sale, for instance, the ownership of the sale article is transferred from the seller to the buyer, and vice versa, and that is the object of the contract. In a contract of mortgage, by contrast, the possession of the property passes from one contracting party to the other, whereas a contract of lease, say, of a house, transfers the usufruct but not the ownership of the rented property, and so on and so forth.
DEFINITION OF BAY` AND ITS LEGAL RULING
Bay` is the transfer of ownership for a quid pro quo, or let us say, a contract indicating the transfer of ownership into the very property of each one of the two countervalues (sale obj
The fiqh of pecuniary transactions –
Lesson 1 (Encompassing weeks 1 & 2)
NB: Not everything found in the written material will be gone through during the lessons; some of it will be left to participants to further their understanding by, though everything in the shared files can be the subject of questions and answers, discussions, and elucidations.
Moreover, this is a once-off detailed note-taking. Parts of the other lessons will be left to the participants to record in their own handwritten notes.
NB: The formulating of practice exercises & “homework” will be done at the time of each lesson.
Intro
1) In his superb 6-volume collection of fatwas, the Tunisian jurist al-Burzuli (d. 841 A.H.) mentioned that acquiring knowledge of the fiqh of pecuniary transactions (buyÙ` et al) was incumbent even on young boys (sibyaan), let alone on adults.
Dr. al-Ghiryaani, in the first answer to a question on modern transactions or mu`aamalaat collated in a recently published text, stressed that it was an individual obligation or fard ‘ayn to know the ruling or hukm of a matter before embarking on it. He thus concluded that being conversant with the judgment about a form of pecuniary transaction had to precede the carrying out thereof, as the person who learns and then acts by his knowledge is rewarded by Allah twice.
Yet most present-day Muslims currently enter into multifarious pecuniary transactions on a quotidian basis without knowing or even bothering to know what is required of them in any such undertaking.
There has thus been an unfortunate surgical division, Christian-like, between the realm of spirituality, worship and moral conscience, and the dimension of everyday man-to-man transactions. Goodness is sought in the former and bypassed, often crudely so, in the latter.
Yet, demonstrably, it is precisely through modes of manipulation of transactional units that the Muslims have been subjugated and the world faces at present a crisis leading to possible planetary implosion.
The Companions, radiyallaahu ‘anhum, remarked that they were more meticulous in adhering to the details of the mu`aamalaat than those of the ablution, as the former were harder on their selves than the latter, and that notwithstanding the high rank possessed by wudoo’ as we are all aware of.
2) This course is thus geared towards equipping the dedicated Muslim in the West and other similar political settings with revitalizing knowledge of the classical fiqh of pecuniary transactions, acting by it, transmitting its understanding, and judging by it.
What we mean by classical fiqh is a fiqh which is traced back to the pristine source of triumphant Islam, purged of apologetic modernist accretions, while being flexible enough to cater for the changing circumstances of life.
3) In this respect, we shall become acquainted, in the course thereof, with what is money, what is “property” that can be the subject matter of contracting, what is a contract and its ingredients, what are debts, ownership, possession and usufruct, legal capacity, other overarching concepts, and the entire spectrum of transactional units, from the most elementary and uncontaminated, sale, all the way down to its most convoluted and usuriously immoral, such as contracts in futures and derivatives trading (via lease of property and trademarks, pledge and time shares, endowments and modern corporations, donations and insurance, torts and tawarruq, insolvency and sale of goodwill, etc). As for zakaat, it can either be made a self-contained part of this course or the subject of an independent one, depending on participants’ preferences.
4) In consonance with the classical articulation of juristic discourse in this field, we shall inaugurate the lessons by a treatment of the paradigmatic legitimate contract, the one of bay`. That does not necessarily entail, however, that we shall be bound by the style and sequence of treatment of this section of the fiqh by our juristic predecessors from Ahl as-Sunnah wa’l-Jamaa`ah.
A. BEYOND THE TEXT
BRIEF DEFINITION OF CONTRACT (‘AQD)
The classical Arabic term ‘aqd, or the act of tying a (juristic) bond, is synonymous with the word “contract” which one encounters in modern law.
A good definition of it, taken from a renowned text on Hanafi fiqh, is that of “a legal relationship created by the conjunction of two declarations, from which legal consequences with regard to its subject matter flow” [Cf. Al-Baabarti’s Al-‘Inaayah ‘alaa Fathi’l-Qadeer].
This definition succeeds in including all the fundamental ingredients of a contract, namely, a) an agreement based on offer and acceptance (implied by the reference to a duality of declarations), b) the existence of two contracting parties (likewise ramifying from the aforesaid), c) the completion of an offer and an acceptance in a legal manner, entailed by the expression “a legal relationship” resulting from the conjunction of declarations by two human sources, and d) the object of the contract.
As for b), there has to be two parties to a contract as no contract can be concluded through a unilateral declaration. An endowment or waqf, which is dealt with in our fiqh of pecuniary transactions as it involves the disposal of a patrimonial asset, comes into being through a unilateral declaration, just as a dissolution of marriage by a divorce pronouncement or talaaq does, and can thus not be referred to as a “contract” or ‘aqd.
Turning to ingredient a), an outward act portraying and manifesting the parties’ internal willingness to enter into a contract has to issue forth into existence, and that is done by offer or eejaab and acceptance or qabool.
Then (and here we move within the orbit of c)) there must be a legal union between the two declarations, i.e. the offer and acceptance are required to agree with each other in the manner prescribed by the Sharee`ah.
Finally, the effects of the conjunction of the two declarations, of the offer and the acceptance, must appear in the subject matter. In a contract of sale, for instance, the ownership of the sale article is transferred from the seller to the buyer, and vice versa, and that is the object of the contract. In a contract of mortgage, by contrast, the possession of the property passes from one contracting party to the other, whereas a contract of lease, say, of a house, transfers the usufruct but not the ownership of the rented property, and so on and so forth.
DEFINITION OF BAY` AND ITS LEGAL RULING
Bay` is the transfer of ownership for a quid pro quo, or let us say, a contract indicating the transfer of ownership into the very property of each one of the two countervalues (sale object and price) in exchange for a corresponding quid pro quo .
If one joins the definition of al-Kaasaani in the primary Hanafi text Badaa’i` as-Sanaa’i` with those of ash-Shirbeeni and the Hanbalite Ibn Qudaamah (in his magnum opus Al-Mughni), given that the latter duo insists on emphasizing the “alienation of property”, we could describe bay` as follows:
“Bay` is the exchange of a useful and desirable thing for a similar thing by mutual consent for the alienation of property”. This denotes that the purpose of such a contract is to transfer property in the sale article to the purchaser and property in the price to the vendor.
Bay` is permissible by ijmaa` or unanimity of consensus on the part of the jurists, as such permissibility is indicated explicitly by both the Qur’aan and the Sunnah.
While “neutral permissibility” is the root legal value (hukm shar`i) assigned to bay` by the Sharee`ah, contingent elements might cast it into forms whereby it can acquire a different hukm or ruling.
For instance, as remarked by Dr. al-Ghiryaani, it is possible for it to convert into a meritoriously recommended or mandoob act, as in the scenario where a man swears to another that he desires the latter to sell to him a particular
item and no harm attaches to the vendor if he accedes to such request. Because of the oath, it is recommended to effect the sale, since the oath-taker is discharged thereby from the burden of his oath by the carrying out of a harmless and meritorious action. This is part of the rights owed to Muslims by their fellow brothers in the Deen.
A bay` can transmute into an obligatory act. This is for instance the case where the purchaser is compelled by necessity to secure for himself some food or beverage or medication in order to save his life. In that scenario, the vendor is mandated to sell what other people’s life happens to depend upon, and is coerced into entering into such a sale if he refuses to do so willingly.
In other circumstances, bay` metamorphose into a reprehensible or disliked (makrooh) act, such as the sale of predatory beasts sought for their solacing company rather than for slaughtering them or deriving benefit from their hides. Thus, Mike Tyson’s extravagant purchase of tigers in his villa was an act loathed by our Sharee`ah.
Finally we encounter the case of the transmogrification of bay` into a forbidden or haraam act. This occurs, for example, when one sells an article at the time the call is made for the Jum`ah prayer, or sells food before taking possession of it, or sells a ribawi instrument or is a townsman who buys articles from an unsophisticated rural dweller before the latter’s caravan reaches the confines of the city he intends to sell them in, or sells lottery cards, or life insurance or futures contracts in the view of the overwhelming majority of scholars, etc.
DEFINITION OF BAY` AND ITS PILLARS
This is in the nature of a portal to the understanding of a significant segment of the fiqh of mu`aamalaat generally.
In fact, in the major collections of ahaadeeth et similia, the reader comes across a variety of transactions and issues, including the contract of loan, insolvency and the law of debts generally, under the heading of a multifaceted “Book of Sales” or “Kitaabu’l-Buyoo`”. So much so that one translator of Kitaabu’l-Buyoo` (the plural form of the singular bay`) in Maalik’s Muwatta’ elected to refer to it as the Book of Business Transactions. Such a title, of course, is excessively generic, for most of the said book is indeed devoted to sales, in the wider sense of the ‘Arabic word buyū`, and specifically excludes important business transactions such as the qiraad, partnership, sharecropping, lease and others. In addition, Maalik, as any scholar of the fiqh of mu`aamalaat, dealt with ‘uqood (contracts) and other transactional arrangements concerning patrimonial assets, and that includes donations, endowments, deposits of assets with third parties, etc., which will not be naturally associated with the term “business”. His coverage of other than buyoo`, moreover, is simply due to the contextual relevance of such subjects to important aspects of “sales” as broadly understood. Because of what is stated hereunder, however, the said translator’s chosen nomenclature has a ring of truth to it, albeit a faint halo only.
As the nerve centre of lawful commerce, bay` has been used by Allah to distinguish a permissible commercial transaction from the illicit nature of ribaa1.
Bay`, as we shall indicate shortly, can either refer to the ordinary contract of purchase and sale, the one readily understood by teachers, students and practitioners of secular systems of law, namely, the exchange of goods for money, or be used with greater broadness to encompass a barter of goods or an exchange of currency or precious metals.
Further to that, bay’ is applied to a whole group of commutative contracts (singular: ‘aqd mu`aawadah, the contract in which a party gives a benefit exactly proportionate to the one received from the other party), of which sale is the prototype, and which includes, within its spacious ambit, besides barter and currency exchange, the agreement of compromise or transactio (sulh, the Latin datio in solutum), the dissolution of a contract by mutual consent of the parties (iqaalah), delegation or transfer of an obligation (hawaalah), compensation or setting off of credits (muqaassah), as the fiqh prefers such definition to that of a setting off of debts, even though the terminology of debts and credits is used loosely and often interchangeably, division of jointly owned property or the use thereof (qismah), and in general every transaction whereby some property or its usufruct is transferred to another person in consideration of a quid pro quo, monetary or otherwise. On the basis of such overarching definition of “bay`”, the ijaarah, the contract of letting and hiring of services (say, a plumbing job) or objects (e.g. a house or a means of transport), is also a bay`, being the sale of the usufruct of the hired work or object in return for a fee (ujrah), and marriage, too, is assimilated to bay’, Khalīl describing the ‘aqd of zawaaj as being “akin to a sale”, to the marked consternation of vestigial feminists.
Accordingly, though the words sale or purchase and sale will be resorted to quite frequently, for the benefit of our English-speaking students and minds trained to grasp prevalent legal notions, the wider connotation of bay` in Islamic fiqh should always be borne in mind when placing the undergoing within its enlarged framework.
In its narrow sense, bay’, as defined by Ibn ‘Arafah and az-Zurqaani, bears the technical signification of a commutative contract the object of which is not merely the usufruct of something or manfa`ah [They thus distinguish it from a lease, though theirs is hardly a definition of this contract as such].
It is thus, more accurately, the contract by which, and this ought to be emphatically underlined, the substance or body or corpus (= raqabah) of something, that is, its ownership, and not only the right to derive a benefit from it by using and enjoying it, is transmitted in return for a corresponding countervalue, the exchange having stemmed from the parties’ mutual consent.
It is thus, more accurately, the contract by which, and this ought to be emphatically underlined, the substance or body or corpus (= raqabah) of something, that is, its ownership, and not only the right to derive a benefit from it by using and enjoying it, is transmitted in return for a corresponding countervalue, the exchange having stemmed from the parties’ mutual consent.
In letting and hiring of a thing, say, an apartment, only the power to use and enjoy it, ius iutendi fruendi, forms the object of the contract. In sale, the power to abuse and alienate the purchased item is also included. In the former, the said use and enjoyment is temporary in return for a monetary remuneration called rent; in the latter, ownership is permanent in return for a monetary consideration called the purchase price.
In his renowned text on technical definitions, At-Ta`rifat, al-Jurjaani (not the rhetorician) assigns to the word bay` the legal meaning of the exchange of (lawful) patrimonial assets capable of having a value attributed to them, resulting in a reciprocal transfer and acquisition of ownership. The capacity of having a lawful value assigned to a property is rendered by the ‘Arabic word mutaqawwim, from qīmah, value, being the active voice of the verb taqawwama. In due course, we shall return to this terminological tool resorted to especially by the Hanafiyyah.
It will be very relevant, for instance, in discussing whether intellectual property or a trademark or the goodwill of a business, or even paper / electronic money, can represent forms of recognized maal or property in Islam, the ownership of which can be acquired and transferred to another party, or not.
Bay` is the head of all commutative contracts, and its rules form the analogical substratum for several rules of many of them, first and foremost the contract of ijaarah.
Bay` is essentially a contract of bona fides, good faith, as amply demonstrated by transmitted reports found in al-Bukhaari’s Saheeh, Maalik’s Al-Muwatta’ and Abu Daawud’s Sunan. Secular law accepts such description of sale [Hence, mala fides in various guises, including fraudulent misrepresentation, willful non-disclosure of material facts, and the stifling of fair competition in an auction sale, is viewed as contrary to public policy, which requires the existence of a reasonable and honest purpose sought to be achieved by the conclusion of such a contract. We shall tackle each and every such vitiating factor at its appropriate time].
The dutch jurist Voet, in his Commentarius ad Pandectas, defined “purchase” as a bonae fidei contract, resting on consent, by which it is arranged that merchandise shall be exchanged at a definite price. There are three essential requirements for it in his view – consent, merchandise and price. If one of them is wanting, there is no purchase.
A modern South African scholar, H. G. Mackeurtan, stated the following in
The Sale of Goods in South Africa [3rd ed., 1949, p.1]: “Purchase and sale (emptio venditio) is a mutual contract for the transfer of possession of a thing in exchange for a price. It has three essentials: consent (consensus ad idem); a thing sold (merx); and a price (pretium)”. We shall return to it in due course.
A contract (‘aqd) is the creation of obligations by an interconnection between an offer and an acceptance in a lawful form, the trace or legal effect of which emerges in the locus of such interlink (being the sale article and the purchase price in respect of bay`).
Capacity and freedom of will are inescapable components of every contract. Linguistically, the word comes from gathering both sides of two ropes and their like, and fastening them reciprocally until they become a single interconnected piece.
A contract is the most ordinary foundation for an obligation coming into existence.
The establishment of a contract requires five basic ingredients:
a) The two contracting parties (al-‘aaqidaan or al-muta`aaqidaan), the vendor/seller and the purchaser/buyer in the ‘aqd of bay`;
b) The locus (mahall) of the contract, also known as al-ma`qood ‘alayhi, namely, the thing in which the legal effect of the contract is firmly established as a consequential result of its formation, such as the exchanged countervalues in a sale (sale article and purchase price respectively), the donated property in a donation, the pledged article in a pledge, the guaranteed debt in an agreement of suretyship, and the two spouses’ reciprocal enjoyment of each other in a marriage.
c) The subject matter (mawdoo’) of the contract, the goal of its specific type, i.e. the root aim for the sake of which the contract was legislated in the Sharī`ah. If a single species is concerned, such as bay’ in all its multiplicity of shapes, the mawdoo` remains one and unchanged, for it varies only among different species. A modern author, Mustafaa `Ahmad az-Zarqaa’, has defined the subject matter of bay` as the transfer of ownership in the sale object to the purchaser, in return for a consideration or ‘iwad (Al-Madhkalu’l-Fiqhiyyu’l-‘Aamm, Daar al-Fikr, Damascus, 9th edition, vol. 1, p. 314). That is however untrue, and is the logical product of an age of hyper-monetization of business thinking, which views “money”, apart from its capacity as a store of value, as being principally a means by which exchanges are effected without having an intrinsic value in its own right. The fiqh of bay` is clear as to the fact that the mawdoo` of such contract is the sale of each of the two countervalues, sale object and price, for the other, each of them accordingly representing the ‘iwad or quid pro quo for its equivalent counterpart. Both of them, after all, are inherently valuable patrimonial assets in Islam, and there is no reason, save for the under-detailed issue of their predisposition to represent price-ness (thamaniyyah), for separating them on the ground of their specific nature, when, in its essence, the common denominator overrides any such differentiation in this connection. Gold for gold is bay`, food for food is bay`, and gold for food is bay`.
The mawdoo`, as the purposive aim of the contract, essentially coincides with its hukm, literally ruling or judgment, that is, the legal effect which is its consequential result, the trace left by it in the sphere of application of the Law: The reciprocal transfer of property in the two countervalues by the contracting parties in this instance.
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d) The pillars (arkaan, the plural of rukn) of the contract, the essential building blocks or constituent materials utilized in the construction of such particular contractual edifice. Viewed from this angle, offer and acceptance, jointly referred to as the formula of the contract (seeghatu’l-‘aqd), represent its pillars in the narrow sense of the term. They shape the legal act which binds the two contracting parties together, whereupon their volitions, expressed in and by such a formula, harden into a private sharī`ah or law which is binding upon them, inter partes, within the bounds of their rights and obligations created thereby.
Bay` is thus clearly a bilateral agreement in which both parties have to perform, not a one-sided or unilateral contract (such as a donation) in which only one party is bound to perform. Roman law would classify it as synallagmatic, i.e. both parties have to perform and the performance of the one is really in exchange for the performance of the other.
To what end do the two contracting parties perform their respective obligations? To the end highlighted by the object of such contract, transfer of ownership of the relevant countervalue to the other party.
Traditional fuqahaa’, such as Ibn Juzayy, tended not to lump the first and second basic ingredients together, but to split each of them into its single components.
Seen from such classical perspective, there are thus five constituent elements which represent the foundational pillars or building units (= arkān as defined by Ibn Juzayy in a broader and less strict sense of the word) of the contract of purchase and sale, which would be defined as the essentialia of such a contract in modern legal nomenclature:
1) The vendor or seller (= al-baa’i`);
2) The purchaser or buyer (= al-mushtari, the technically favoured definition, or ash-shaari, a synonym mostly used by the linguists).
These two represent the contracting parties, the legal personas qualified to enter into such an agreement, and, as a pair, they are indicated by the joint expression al-muta`āqidān (the two parties to the conclusion of an ‘aqd, i.e. a contract, but literally a tie, bond or knot, in the same manner as the Latins spoke of a vinculum, as well as a nexum, the first known contract in Roman law), which is both something concrete and a legal metaphor. The morphological form tafaa`ala, of which the said word in the dual represents the noun of the two doers, ordinarily depicts an interaction between two active parties, one doing the same thing to the other, in this case tying a legal knot around the other contracting party’s neck). Though the word bay` from the simple trilateral root denotes the contract of purchase and sale of something, given that the two actions go hand in hand, the verb bā`a meaning both to sell and to buy, and the augmented form ibtaa`a (of the morphological variant ifta`ala) from the same root meaning to purchase, from a strict perspective the word bay` is assigned to “sale”, whence the Arabic name for vendor, and shiraa’ to “purchase”, thereby explaining the term used for the buyer. That is the language of Quraysh which is predominantly used purely to facilitate people’s understanding.
The use of the masculine in what follows embraces the female gender as well, since free women enjoy full competence to participate in the sale and purchase of objects.
To recapitulate: In its root, the contract is termed bay` and shiraa’ in respect of each of the two contracting parties, since their situational condition is similar, as it is characterized by a reciprocity of exchange and the mutual transfer of two equivalent considerations, ‘iwad for ‘iwad. Each of them buys and sells something at the same time.
Therefore, bay` is one of the words described in Arabic as encompassing opposite meanings (asmaa’ ul-`addaad), and likewise the word shiraa’. The source position in Arabic, accordingly, is to describe either party to this contract as baa’i` and shaari, as interchangeable synonyms. One can thus legitimately say ‘he sold a commodity’ by using either baa`a or sharaa [See al-Fayyoomi’s Al-Misbaahu’l-Muneer].
Baa`a – yabee`u – bay`an: Bay` is thus the “original” or masdar of the trilateral verb, the act of selling / buying detached from any temporal demarcation.
Allah the Exalted has said: «And among people are those who sell (yashri) themselves desiring the good pleasure of Allah» [Soorah al-Baqarah: 207, 205 in the Warsh riwaayah]. So the verb yashri has been used in the aayah to denote yabee` or the act of selling. Likewise, in an authentic hadeeth found in Muslim’s collection, we encounter the narration to the effect that the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, said: “Let no man make a purchase (yabee`) over his brother’s purchase (bay`).”
However, as indicated hereabove, people in general, as well as the fuqahā’, have traditionally followed the custom of using the words bay` and baa’i` to denote the action or the person who hands over the merchandise by which the other party’s need of use and consumption is fulfilled, and the words shiraa’ and shaarī (or its augmented form mushtari or mubtaa`, the noun of the doer from ibtaa`a) to specifically designate the action or person who hands over the other countervalue (which can be similarly used and consumed).
3) The purchase price (= ath-thaman). It usually, but not exclusively, consists in Islam of valuable coins;
4) The sale object (= al-mathmoon, being the passive voice in the form maf`ool from the same verb, since it is the thing on which the action of attributing a price to or paying it for, takes place). It is also called al-mabee`, “that which is sold”, also a noun of the passive from the verb bā`a meaning predominantly to sell.
This second pair constitute the exchanged countervalues in this transaction, jointly referred to by the word al-ma`qood ‘alayhi, i.e. that on which the act of creating a contractual tie takes place, for both the sale object and the purchase price form the subject-matter of the contract, and each of the two performances is the corresponding equivalent of the other [Although, in what follows, the term “the subject-matter of a sale”, for the sake of ease, is going to be used as a synonym for the sale object or the sale article or the res vendita or the merx, and not to indicate the price]. As al-Bannaani said, the object is sold for the price, and the price for the object, notwithstanding the fact that lay people conceive the logic of the former but not the latter, and none of them would express himself as offering to sell, say, twenty pounds for a shirt, whereas in legal terms that is what exactly transpires in such bilateral transaction, according to one of the two sides of the selfsame indivisible coin.
5) The words or conduct (including tacit endorsement) signifying an offer and its acceptance leading to a mutual consent between the parties, in ‘Arabic, as-seeghah, literally, the formula, meaning the declaration of will by the parties to enter into a sale stemming from their consensus ad idem on the other two essentials (or two-fold essential of sale object and purchase price). No demarcated formula is stipulated in the Sharee`ah of fitrah, unlike the case with the rigidified system of Roman law. As a modern judge said, “since people do not couch communications in the form of a catechism, the phrase “offer and acceptance” ought not to be applied as a talisman revealing, by a species of esoteric art, the presence of a contract, or reducing parties’ negotiations to such an inflexible species of interrogatory as was formulated in the Roman stipulatio.” Such an open approach is applicable, with equal force, to the assessment of the requirement of a legally empowering seeghah in our fiqh.
Az-Zarqaa’s definition, which is general to all ‘uqood, apart from joining what naturally comes in pairs, basically adds the purposive object of such contract, which is essentially the same as its hukm, although the mawdoo`, too, is represented by a pair of two mutually mirroring legal effects combined into one (= transferring ownership to one’s counterpart and assuming ownership from him). In reality, there is no inherent conflict between his approach and that of a classical faqeeh such as Ibn Juzayy, for the mawdoo`is the legal trace imprinted on the transactional arena by the coming together of the other essentials. It is the consequential result of it, and the aaqidaan do not reach mutual consent on a thaman and a mathmoon save in a bay`, which logically attracts the hukm specific to it upon its conclusion.
Intriguingly enough, az-Zarqaa’ himself, with full cognizance of the lexical duplicity of the relevant words, specifically defines bay` as a contract which rests on the foundation of the mutual exchange of a patrimonial asset (maal) for another (māl), and indicates the perpetual exchange of ownership of the respective properties, without such exchange transferring property in articles capable of being owned being subject to any temporal demarcation restricting the said perpetuity [There is no fixed-term ownership in bay`, which is other than ijārah]. Therefore, he accepts the fact that each māl is sold for the other. Indeed, Prophetic sayings and juristic texts make ample use of the words tabaaya`a (= to sell reciprocally to one another) and mutabaayi`aan (mutual vendors).
Of course, this strict Islamic logic makes little sense when most of the sale objects are acquired by means of paper or electronic money, for it does not represent māl, a subject we will exhaustively deal with later.
The contract is one of purchase and sale. At times, we shall refer to it, for purposes of brevity and convenience, as the contract of sale or sale contract [Voet went even as far as describing it simply as ‘purchase’, not without justification].
As for the above-quoted secular definition, it leaves out the contracting parties from the enumeration of the essentials of purchase and sale. That is so because secular law treats capacity to contract, in consonance with the Sharee`ah, as one of the essentials of any contract, although the rules of fiqh pertaining to the contracting parties cast a wider net than just contractual capacity, and such capacity might vary from contract to contract. Hence, the essential of the ‘aaqidaan, as they view them, is incorporated by reference into the seculars’ definition, since contracting parties are personas with capacity to contract who have reached consensus on the countervalues
[We shall see in detail who represents a persona for the fiqh: Does it include, for instance, limited liability companies or societies? And when dealing with sales entered into by minors, we shall fully explain what contractual capacity or ahliyyah to conclude an ‘aqd signifies].
The seculars, however, consider reality of consent to be an essential of every contract (for the existence of mutual consent is such an essential, as manifestly evidenced by the two afore-quoted definitions of purchase and sale), and its reality can be undermined by such vitiating defects as mistake, misrepresentation, duress and what they call undue influence. Actionable error resulting in lack of consensus, in particular, is seen as negating the formation of a contract, for no consent of the parties can exist in its presence, whereas the concept of voidability is utilized to distinguish it from lesser forms of invalidation of genuine consent. However, it is the fact that consensus is excluded by it which voids a contract occasioned by such mistake, not the error as such, so one comes back to consent as the required essential. We shall return to this issue whenever the need for it arises, and we will deal also with two essentials of a contract in the view of secular law, namely, a) the objective physical possibility and the legal possibility of the object of the contract, that is, the performance on which the contracting parties agree must not be physically objectively impossible in a total sense, as opposed to its subjective impossibility or a partial, non-absolute one, or its difficulty, and it must be legally possible; and b) its legality, for the contract must also be legal, a topic connected in particular to the concept of illegality and its consequences [In Islam, the legal prohibition of a transaction does not necessarily render it null and void]. The first such essential is covered in the fiqh by the rules on gharar, and the latter by the differentiation between valid and irregular sales.
CATEGORIZATIONS OF BAY`
THE DIFFERENT VARIETIES OF ACQUISITIONS
1) People’s acquisitions fall into two broad species:
1) Acquisitions without giving any consideration, ‘iwad, for what is acquired;
2) Acquisitions involving the giving of a quid pro quo to the other contracting party. The latter are the field of application of commutative contracts.
2) The first class of acquisitions has been subdivided by Ibn Juzayy into four kinds:
a) Inheritance.
b) The ghanīmah or war-booty, which was originally part of the wealth of warring unbelievers.
c) Gratuitous voluntary bestowals of one’s property, such as a gift, a donation, or a trust / endowment established for one or more beneficiaries, the waqf, and the like thereof, such as sadaqah [As with a loan, or with zakāt in spite of the invalid rife practices of the present age, ownership is transferred to the beneficiary for whose sake the contract was concluded or the taxable asset was distributed, save in the special case of the waqf, ownership of which, according to the best of opinions, belongs to Allah the Exalted and its subject-matter cannot be alienated].
d) What is owned by no one, res nullius, such as firewood in a forest, prey for hunting subject to nobody’s control and ownership, and uncultivated land which is revived by a person, which is also unclaimed property.
3) As for acquisitions on the strength of a consideration, he similarly classifies them under one of four sub-categories:
i. A consideration given in exchange for a portion of a person’s patrimonial wealth (the body or substance, raqabah, of which, is then transferred into the ownership of the person giving such ‘iwad). Bay` is the typical example of that.
ii. A quid pro quo given in return for the acquisition of ‘amal, that is, the services rendered by another person, e.g. the building of a house, the teaching of pupils, the repairing of a leaking pipe, hence the enjoyment of its final result. That is what takes place in a contract of ijārah. This contract was called by the Romans locatio conductio operis. A piece of work, such as the repairing of a damaged engine of a car, is let out (given out) by the lessor, the one who wants to have his car fixed, and “accepted” by the lessee, say, your garage mechanic, who agrees to do the work for a remuneration / fee or ujrah. [Likewise with a consideration, ujrah, given for the usufruct, manfa’ah = the temporary use and enjoyment, of a rented thing, such as a truck or a mule. This was termed locatio conductio rei by the Latins].
iii. An ‘iwad given as a consideration for private parts, i.e. to render a woman’s private parts lawful to oneself, as with the payment of dowry (sadaaq) to a would-be spouse.
iv. An ‘iwad given in exchange for a criminal offence, i.e. to settle the damage caused by the injury occasioned by it, as in the case of the payment of blood-money (diyah).
• NB: An important distinguisher
- One can own the very thing (‘ayn), the corpus or raqabah, of something, as with the purchaser owning a motor vehicle which he has bought; he can own its usufruct = the use and enjoyment of something, i.e. its manfa`ah, as with the lessee’s entitlement to reside in a rented property, with the concomitant power to benefit from it. He can apportion part of such manfa`ah to a third party he sub-lets the property to or he sub-contracts a piece of work to; he can own a right to utilize and consume something so long as the thing endures as such, in the form of a subjective non-transferable right exclusive to his person, called (haqq) al-intifaa`. The last-mentioned type is the one, e.g. peculiar to a guest who uses and consumes the property of his host by the latter’s authorization, for he does not own the usufruct of such property (let alone its corpus), but only the subjective and non-transferable entitlement to use it and consume it; and, lastly, he can own a legal right or entitlement (haqq) which has been established by the Law explicitly or by deduction from explicit texts.
It is particularly important to place the accent of the beat on the differentiation between owning a raqabah and owning a manfa`ah. Typical transactions giving rise to the latter form of ownership (ownership of usufructs) are the ijaarah, the waqf and the ‘aariyyah or loan of a particular and identifiable property **; and bay` is the primary mode of bringing the former type of ownership into being.
Ownership of a usufruct allows for its restriction by contractual stipulations concerning the modes of beneficial use of a property, or the time period thereof, or the place where it can take validly take place. By converse, one cannot stipulate that, after a sale is perfected, the purchaser of the sale object as its new owner can be restricted from the right of dealing with it and
of disposing thereof.
The thing one makes beneficial use of in the form of a manfa`ah has to be made good if it is lost as a result of the owner of the usufruct’s negligence or willful damage, or in the event that he violates the terms and conditions of the usufruct. No such making good of a property can be stipulated with regard to the full ownership thereof that is enjoyed by a purchaser in a sale.
The locus of a contract of sale, as we have seen, is a material thing: A particular sale object and a price, a monetized one in bay` in its strict form. The locus of a manfa`ah, e.g. the enjoyment of a piece of work (and its result) financed by the quid pro quo of a fee by the lessor thereof, the man commissioning, say, the repairs to his motor vehicle suspension, is not something material, but rather an “abstract” reality.
** Literally al-‘aariyyah means what is taken by persons by turns. It consists in putting one in possession of the use of a thing without anything given in exchange (= without quid pro quo), or putting another, temporarily and gratuitously, in possession of the use of a thing, the substance or raqabah of which is not consumed by its use. The borrower may lend the borrowed object to a third party, but he must not hire it out or give it as security. The owner may, at any time, demand the return of the object which he has lent, but he may become liable for damages. This kind of loan, which is thus different from qard, being the loan of fungibles or loan properly so-called, is recommended as a form of permissible and charitable deed. For instance, the private or domestic property which is needed by neighbours or others for temporary use is part of what can be the subject-matter of this contract, and it is said that such property is what is referred to as al-maa`oon in Sorah al-Maa`oon. The Prophet, Sallallaahu ‘alayhi wa-Sallam, is said to have borrowed weapons from Safwaan b. Umayyah through this contractual form.
SOME CONCEPTUAL CLASSIFICATIONS OF SALES
The contract of bay`, according to Ibn Juzayy, is of three types:
1) The sale of bi-metal currency or similar forms of wealth, ‘ayn, for goods (‘araÃ). What is meant by ‘ayn is gold and silver (minted or otherwise). ‘Arad is everything else [The Madinans generally define ‘ayn as the opposite of ‘arad, whereas the Shāfi`iyyah habitually contrast it with dhimmah / dayn = an obligation stored in one’s dhimmah *, each such pairing being correct in its own way]. This is a transaction which has never been named as other than bay`. Largely, though not entirely, it is equivalent of what secular lawyers understand by the term of a contract of purchase and sale.
2) The sale of ‘arad for ‘arad, normally referred to as barter (of goods). It is also a bay`, for which the more specific word mu`āwadah has also been used.
3) The sale of ‘ayn for ‘ayn, i.e. currency exchange. If the sale involves the exchange of gold for silver, it is called Òarf. If the same currency is involved, gold for gold or silver for silver, it is termed murātalah (from the word ratl, being a measure of weight) if the exchange is effected by weight, or mubādalah if it is executed by number.
*
From an objective angle, the meaning of dhimmah in the fiqh is the recipient of obligations dayn (incorporeal properties), as opposed to obligations ‘ayn, which correspond more or less to things real, determined in their individuality, such as a specific piece of land, individualized animals or their like.
Simple example: I sell a particular cow for a sum of money to be received from Mr. Qaasim as purchase price. Mine is an obligation ‘ayn. I have to ensure the delivery of that particular cow. Mr. Qaasim’s is an obligation dayn. In his fictional mental recipient or dhimmah, there is an obligation to hand to me, not individualized gold coins, but a certain sum of such coins. Likewise with a loan: I lend money to Mr. Kamaal. He is not saddled with the obligation of refunding me those very same dinars he borrowed from me, which he has most likely consumed, but a like quantity of such species.
From another viewpoint, a sale can be listed in one of two columns: A bay` munjaz, which is fully perfected as a binding contract from the moment the agreement is concluded, hence it can be executed without demur; and bay` al-khiyār or sale with an option, which is not binding on the parties until and unless the purchaser has, within a stipulated time, exercised his option to confirm the sale as opposed to withdrawing from it.
Looking at it from another visual angle, a sale can fall under one of two classes:
- A sound or wholesome, i.e. valid sale, bay` sahīh, the one which fulfills all the conditions that are necessary for the existence of the specific juridical form in question, to which the word bay` is assigned; or
- A corrupted, vitiated sale, i.e. an irregular one, bay` fāsid, the imperfectum negotium of the ancient Romans, meaning the act which cannot produce the ordinary effects of such species of acts (e.g. buying something during the Jum’ah prayer).
[For Ibn Rushd the philosopher, a close examination of the reasons for the occurrence of shar`ic prohibition of a sale would display that they can be subsumed under four general causes of corruption, fasād:
1) The proscription of the sale object itself (Essentially forbidden sale objects. The prohibition of the mathmūn itself, which comprises a tiny segment of fasād, is easy to avoid. Refraining from selling liquor, bacon, Playman or a lotto card is part of ease).
2) Ribā.
3) Gharar.
4) Conditions which indirectly trace a sale back into the forbidden territory of ribā, gharar, or a combination of both.] Presumably, the issue of two transactions (safaqatayn) in one (safqah), to be explored at length in this course, falls under 4.
A further arrangement would partition it into the following four compartments:
1. The simultaneous exchange, at once, of both the price and the sale object, with no deferred terms. That is the cash sale, bay` an-naqd, the safest, hence soundest and best form of all sales.
2. The simultaneous deferment of both the price and the subject-matter of the sale. That is the sale of a debt for a debt, bay` ad-dayn bid-dayn, which is impermissible and consequently proscribed. As we shall see, this topic is a vast ocean. For example, on 5 January 2010, Jameel Insurance Co insures Saleem’s thatched roof house from the risk of fire in return for monthly premiums payable by debit order beginning with 1 February 2010.
3. Deferment of the price and immediate delivery of the sale article, that is, the credit sale or bay` an-nasī’ah (the latter word meaning deferment). For instance, on 5 January 2010 Saleem sells a box of printing paper with a refill cartridge to Jameel for $30 to be paid by the latter on or before 31 January 2010.
4. Deferred delivery of the sale article and advanced payment of the price. That is, primarily, the contract of salam (and what is akin to it in meaning): For example, Jameel pays now to get from Saleem a certain quantity and quality of wheat (essential agricultural produce) delivered to him for that price one month from the conclusion of the said contract.
Provided the other conditions of validity, first and foremost, obviously, the essential requirements of sale, have been adhered to, the other three forms are allowed by the Sharī`ah.
• NB: A further important distinguisher
Property can inter alia be classified into determinate / specific (‘ayn) and indeterminate / non-specific (dayn) property.
The first is the individually determined thing such as a specific house or demarcated Volvo car.
The second is what is entrenched in one’s dhimmah, such as a particular sum of gold coins.
As Dr. Mansuri has stated, the chief distinguishing test is: When a man gets certain property from another who either borrowed it from him or took it by force (= ghasb), is he entitled to recover it in species or not? If he is, then it is called specific or determinate = property ‘ayn, and if he is not, it is called non-specific or indeterminate = property dayn.
If an article has a like or mithl, it cannot be recovered specifically. Typical example: A 1-dinar coin, or even a quantity of grain or some liters of olive oil of a specific quality. It is thus regarded as dayn or indeterminate property. If Zayd sells an article for one hundred silver coins out of a bag of money pointed to him by the buyer, he does not become entitled to be paid out of the identical bag, i.e. out of that specifically identified item or individually determined corpus. His claim will be satisfied on being paid an equivalent monetary amount.
All indeterminate or dayn property thus rests generally on the mere responsibility (= dhimmah) or “incorporeal” obligation (= dhimmah) of the person from whom it is recoverable.
As the Qatari doctor ad-Daaghi said, one of the benefits of such conceptual division is that, from a principled or foundational point of view, dayn properties in the dhimmah are not deemed a wholesome locus for contracts transferring property and exchanging considerations, one for the other, whereas, foundationally and principle-wise, ‘ayn properties do; and another benefit resulting therefrom is to emphasize that dayn properties (= duyoon, the plural) can be transferred (by hawaalah or transfer of obligations), whereas hawaalah is not valid in relation to ‘ayn properties (= a`yaan, the plural).
صلّ الله على سيدنا محمد وآله وصحبه وسلّم تسليما
B. THE TEXT
‘Iqdu’l-Jawaahirith-Thameenah fee Madhhab ‘Aalim al-Madeenah by Ibn Shaas (d. 616 A.H.)
“Book of Purchase and Sale” (Kitaab al-Bay`)
Together with the examination of its reality (haqeeqah) and judgments (ahkaam)
As for its reality (haqeeqah), Imam Abu ‘Abdullaah (= Muhammad b. ‘Ali al-Maazari) has said: ‘It is the transfer of ownership in exchange for a quid pro quo.’ This definitional tool encompasses both the regular (saheeh, literally, sound) and irregular (faasid, literally, corrupted) forms of bay` if we opt to say that the irregular sale does pass ownership. If, instead, we were to say that it does not transfer it, the definition would not be able to encompass the irregular bay` from the viewpoint of its meaning. However, it may happen with the Arabs that a particular naming carries a true, literal signification, because of their belief that ownership was indeed transferred by virtue of irregular sales in accordance with the rulings prevailing among them during the jaahiliyyah, even though it would not be transferred thereby according to the judgment of Islam.
If we then turn to its rulings or judgments (ahkaam), the examination thereof should be articulated in five different sections:
a) Concerning its regularity / soundness (sihhah) and its irregularity / corruption (fasaad);
b) Concerning its binding nature (luzoom) and its permissibility (jawaaz);
c) Concerning the ruling applicable to it before taking delivery (qabd) of the sale article and after it;
d) Concerning that which the unrestricted nature of its wording necessitates in respect of fruits and trees, and the solicitation of the consequential ramifications on the part of the roots;
e) Concerning the parties mutually binding themselves to abide by a covenanted agreement” [The fiqh on the sale of slaves will be left out due to its present lack of relevance].
“First section: Concerning the regularity and irregularity of bay`. It contains five sub-sections.
Subsection I: About the pillars of bay`. They are three:
Pillar 1:
That by which the contract of bay` is concluded, i.e. the formula of offer and acceptance, or what resembles it and is treated analogously to it in indicating inner consent, be it verbal or by conduct aiming at expressing it.
As with the formula by which marriage is concluded, all that is needed is some form of exchange of a formulation of an offer and an assent thereto, and so a person’s statement equivalent to the explicit phrase: ‘I have purchased (such and such a thing) suffices.’
A derivative ruling: If there is a dispute between the two parties as to whether a deliberate indication of offer or acceptance has materialized, Ashhab has related in Al-‘Utbiyyah that if a person were to say to another, ‘Sell me this specific item’, and the said addressee were to answer, ‘Yes or okay or fine (na`am), for such and such a price’, and the person who had requested from him to purchase it were to comment, ‘I have indeed taken it’, whereas its owner maintains that ‘I did not intend to sell it, but only to single it out or select it as an item I am offering for sale’, then the position is as follows:
If one displays his article in the market and ordinarily markets it as a saleable commodity to the public, he is bound to give effect to what amounts to a concluded sale, even though the two contracting parties have not parted from one another at their meeting place or majlis. On the other hand, if it were known that he was merely joking without intending to sell it, no sale is binding on him.
In the Mudawwanah [Al-Kitaab, as it is referred in the text], it is mentioned on the strength of a narration from Ibn al-Qaasim relating to a person who lays out and displays his merchandise in the market who is asked by another, ‘At which price do you sell this item?’, and he replies, ‘I’m selling it for 100 gold coins’, whereupon the man so inquiring from him says, ‘I have taken it’, whereas its owner rejoins, ‘I’m not selling it to you’, though he had laid it among his merchandise on display for sale, the owner of the article is required to take a solemn oath to the effect that he did not confer with the prospective purchaser about the item with the intention of effecting a sale thereof but rather for another purpose (which he has to mention in the said oath) which is different from acceptance of a contractual offer. Once he takes that oath, his word is the final one in the dispute.
If he refrains from taking such an oath, the sale of the article is binding on him. Ibn al-Qaasim said (in Al-Mudawwanah): “Likewise if a man were to say, ‘Sell me this item at such and such a price’, and the owner were to reply, ‘I’ve sold it to you’, whereupon the former, who had expressed the desire to purchase it, changes his tune and says, ‘I am not acquiescing in the sale’” .
In the next lesson, inshallaah, we shall complete the talk on the pillar of the formula, and we shall then move to the second pillar of bay`.
Allaahumma Salli ‘alaa Sayyidinaa Muhammad wa’alaa aalihi wa-sahbihi wa-Sallam tasleeman katheeran
The fiqh of family affairs –
Lesson 1 (Encompassing weeks 1 & 2)
NB: Not everything found in the written material will be gone through during the lessons; some of it will be left to participants to further their understanding by, though everything in the shared files can be the subject of questions and answers, discussions, and elucidations.
Moreover, this is a once-off detailed note-taking. Parts of the other lessons will be left to the participants to record in their own handwritten notes.
NB: The formulating of practice exercises & “homework” will be done at the time of each lesson.
Intro
1) Despite the fact that the family is the central nucleus of lawful intimate interaction and essential tie-generating in the Deen of fitrah, scant regard has been paid to its general root principles and detailed rulings as opposed to, say, the arena of the ‘ibaadaat. This course is thus designed with the aim of filling such a lacuna.
2) We daily come across gruesome stories of marital problems without any juristic outlet of redress, so we have to strive to reactivate the Islamic justice system in this crucial area of quotidian human activity. The tension of this course is towards equipping the dedicated Muslim in the West and other similar political settings with revitalizing knowledge of the classical fiqh of family affairs, acting by it, transmitting its understanding, and judging by it. What we mean by classical fiqh is a fiqh which is traced back to the pristine source of triumphant Islam, purged of apologetic modernism, while being flexible enough to cater for the novel contingencies of ever-flowing life.
3) In this respect, all the main aspects of family affairs, from marriage to custody and maintenance, will be tackled in a systematic fashion.
4) Though a classical Maaliki text will be used as an anchoring reference source (to be transcended whenever required), all important areas of divergence with the other main madhhabs of Ahl as-Sunnah will be expatiated upon as well.
A. BEYOND THE TEXT
THE SEMANTIC AND TECHNICAL SIGNIFICATIONS OF THE WORD NIKAAH
- The word nikaah is used in Arabic to denote sexual cohabitation. This is the meaning carried by it in His statement, Exalted is He: «But if a man divorces his wife a third time, she is not halal for him until she has cohabited (tankiha) another husband» [Soorah al-Baqarah: 228]. Sayyidah Aisha Bewley translated the verb as “married”. However, what is intended in the aayah is actual sexual cohabitation. Indeed, the simple act of the thrice divorced woman getting married to another husband without the accompanying factual consummation of the nuptials cannot, assuming the dissolution of such later union, render her lawful to her erstwhile husband again.
The word nikaah is additionally employed to indicate the contracting of marriage. Such a use is widespread in the Qur’aan, and it is in fact the prevalent one for it in the Book, as in the case of His statement, Exalted is He: «You who have iman! when you marry (nakahtum) believing women and then divorce them before you have touched them …» [Soorah al-Ahzaab: 49].
Linguistically, therefore, the word nikaah is literal in denoting sexual cohabitation and figurative in denoting the contracting of marriage. The latter metaphorical use is based on using the word for the “cause” to signify the “effect” of such cause = To contract a marriage is the causative agent of cohabiting sexually with a spouse.
From the point of view of legal terminology, by contrast, nikaah is literal in denoting the marriage contract and metaphorical in denoting the sexual cohabitation. The rhetorical figure is once again the utilization of the cause to mean the effect thereof = Because one wants to cohabit sexually with a consort, he concludes in law a contract of marriage.
A consequential result of the fact that nikaah, from this legal viewpoint, has only a metaphorical but not literal reality in relation to sexual intercourse, is that whoever commits zinaa with a woman, is not precluded from marrying such woman’s daughter or marriage, since the sexual intercourse in the form of zinaa is not named nikaah in the law according to the Maalikiyyah and the Shaafi`iyyah.
In his famous commentary on Ibn Abi Zayd al-Qayrawaani’s Ar-Risaalah , i.e. Al-Fawaakihud-Dawaani, an-Nafraawi mentioned that the linguistic import of the word nikaah is entry or penetration, since one says in Arabic nakaha an-nawmu al-‘ayna, meaning that sleep penetrated the eye, as well as nakahati’l-hasaa akhfaafa’l-ibili = pebbles got inside the camel’s hooves, and nakaha’l-badhru al-arda = the seeds entered inside the earth.
The dictionary’s entry is nakaha yankihu nikaahan.
- As for its connotation in the technical nomenclature of the Law, nikaah is the contract between a man and a woman which has the effect of legalizing their reciprocal enjoyment of one another and of bringing to light their respective rights and duties, for the purpose of preserving the human species.
In the school of Ahl al-Madeenah, the most renowned lexicon of juristic terms is Ibn ‘Arafah’s Hudood, elucidated by his fellow Tunisian ar-Rassaa`.
Ibn ‘Arafah defined marriage or nikaah as follows:
“An-nikaahu ‘aqdun ‘alaa mujarradi mut`ati at-taladhdhudhi bi-aadamiyyatin, ghayra moojibin qeematahaa bi-bayyinatin qablahu, ghayra ‘aalimin ‘aaqiduhaa hirmatahaa in-harramahaa’l-Kitaabu ‘ala’l-mashoori aw al-ijmaa`u ‘ala’l-aakhar”:
“Marriage is a contract for the very enjoyment of pleasurable gratification with a human female, which does not impose as an obligation the disbursement of the value of such female, that comes into being by virtue of an established proof antedating such gratification, and which necessitates that the man who contracts it is not aware of its prohibition if it has been proscribed by the Book, according to the dominant position in the madhhab, or by the unanimity of scholarly consensus, being an interdicting source other than the Book, according to the other view in the madhhab”.
Ibn ‘Arafah thus rebutted the definition of marriage supplied by another luminary of the Madinan scool, Ibn Basheer (at-Tanookhi, the author of At-Tanbeeh ‘alaa Mabaadi’ at-Tawjeeh), who had made mention of “a contract for the sake of (legitimizing) the woman’s private parts in return for a consideration or ‘iwad”, a loose definition which is inter alia shared by some forms of zinaa.
As ar-Rassaa` has clarified in his aforementioned commentary, Shaykh Ibn ‘Arafah has specified by the word ‘aqd that marriage falls within the genus of contracts in so far as it entails a coming together of an offer and an acceptance from the two contracting parties, and it entails that each contracting party binds himself to abide by a matter.
By the prepositional phrase ‘alaa mujarrad, he made it plain that the enjoyment intended by this contract is the enjoyment of gratification and nothing else, i.e. that is the locus of this contract which accordingly distinguishes it from contracts aimed at acquiring the corpus or usufruct of something (e.g. sale and lease), etc.
The word mut`ah or pleasurable enjoyment is self-explicatory. The generic term enjoyment possesses a broader semantic range than the word gratification or taladhdhudh. That is so as enjoyment can be both abstract and sensorial, and its import is thus dilated so as to encompass such matters as high-rank, political authority, the enjoyment of riding exquisite means of transport, food and beverage, etc, whereas gratification is restricted to sensorial realities. By his definition therefore, Ibn ‘Arafah excluded whichever forms of enjoyment were unrelated to the root of marital enjoyment by his phrase ‘alaa mujarrad, just as he excluded non-sensorial forms of enjoyment by his use of “taladhdhudh”.
When he said “ghayra moojibin qeematahaa”, he eliminated from the definitional picture the scenario of making cohabitation with a slave woman contractually lawful for oneself, if a proof corroborating its lawfulness materializes. Such a man’s word is in fact accepted as veracious if he were to allege that he contracted for the sheer gratification from a human female, provided a proof corroborating his allegation is established. Once that takes place with regard to a slave woman, however, he has concluded a contract for the sake of attaining a female human’s gratification which obligatorily necessitates that he should disburse the monetary value of such female human. The liquidation of the monetary value of the slave woman thus legalized becomes compulsory on the occurrence of one’s gratification with her. That is different from what happens in marriage.
Ibn ‘Arafah’s unqualified use of the word “enjoyment of gratification” makes it incumbent to subsume the marriage of a eunuch and a person whose testicles have been castrated under the general definition. If somebody is in need of marriage, it is recommended for him to marry even if he lacks the required tool as with the eunuchs. Khaleel’s commentators concur on such fact.
Bi-bayyinah is a circumstantial phrase meaning that the existence of gratification should be preceded by a corroborative proof, and thus the form of zinaa is removed from the compass of the definition.
Ghayr ‘aalim is another circumstantial phrase: He is the one who contracts the marriage while in the state of being a person unaware of its being prohibited
a) either by the Book alone, or
b) more generally, and not exclusively by the primary source of the fiqh [hence not the person who necessarily knows that he cannot marry his sister or auntie, etc].
These two views are well-known positions in the madhhab, from which divergent rulings in a number of masaa’il of marriage and zinaa spring forth, and which shall be dealt with in due course.
We have mentioned above that, as a result of the fact that the word nikaah in the law encompasses the meaning of sexual cohabitation only metaphorically, it was not prohibited, for the Maalikiyyah and the Shaafi`iyyah, to contract a marriage with the daughter or mother of a woman one committed zinaa with, since such unlawful cohabitation did not really signify a nikaah in the law.
This ruling is a disputed issue among the Muslim scholars.
In his superb commentary on Maalik’s Al-Muwatta’ titled Al-Istidhkaar , the great Cordovan polymath Ibn ‘Abdi’l-Barr said the following in support of the mainstream view of the said two schools:
“The jurists who legitimately issue fatwas in the different Islamic regions have indeed reached consensus on the fact that the man who has committed zinaa with a woman is not prohibited from marrying her once he has granted her the period to free herself of any suspicion of pregnancy. That being the unanimously agreed on situation, it is a fortiori legitimate for him to marry her mother or daughter, and Allah is the grantor of success.”
In his juristic text Al-Kaafi fee Fiqh Ahli’l-Madeenah al-Maaliki , he said:
“If one commits zinaa with a woman, and then resolves on marrying her mother or daughter, neither the union with such woman’s mother, nor the one with her daughter, is forbidden to him. This is the sound position based on the statement of Maalik, and it is the asseveration of the erudite people of the Hijaaz. A different narration related from Maalik affirms that the act of zinaa interdicts him from marrying the woman’s mother or daughter, for zinaa is treated in such case analogously to a lawful sexual intercourse, which is the view propounded by the scholarly people of the ‘Iraaq [and thus by the Hanafiyyah]. The first-mentioned ruling is the sounder of the two, and it is the one acted upon by the jurists of the people of al-Madeenah, due to the statement of Allah the Exalted, «and your wives’ mothers (wa-ummahaatu nisaa’ikum» [Soorah an-Nisaa’: 23], and the undisputed fact that the one whom he committed zinaa with is not one of his wives (nisaa’ihim) nor is her one of his stepdaughters.”
The position enunciated by Ibn ‘Abdi’l-Barr has also been subscribed to by Ibn Taymiyyah and Ibn Hazm, over and above the fact that it constitutes the dominant position of the Maalikiyyah and the Shaahi`iyyah as stated above.
The contrary view, to the effect that either such union is prohibited for him, is the madhhab of the Hanafiyyah and of the Hanaabilah, apart from being a view narrated from Imam Maalik as mentioned in Averroes’ Bidaayatu’l-Mujtahid .
The proponents of the former view have relied on the under-mentioned:
a) His statement, Exalted is He, spanning aayah 23 and aayah 24 of Soorah an-Nisaa’(from hurrimat to musaafiheen). The basis for using it as a corroborative proof is the fact that Allah, may He be Exalted, mentioned in this pair of aayaat the women one cannot legally marry, and, after enumerating them, He legalized for His slaves all women falling outside such demarcated categories. Among the prohibited class one comes across no reference to the daughter or mother of a woman one has committed zinaa with, which circumstance is a pointer to the licit nature of both in relation to the male perpetrator of zinaa ;
b) The hadeeth transmitted on the authority of ‘Aaishah, may Allah be well pleased with her, to the effect that she said: The Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, was asked about the man who follows the perpetration of the haraam with a woman by marrying such a woman’s daughter, or follows the perpetration of the haraam with a woman’s daughter by subsequently contracting a marriage with her mother. The Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, said in reply: “The haraam does not forbid the halaal. It only makes what originated from a lawful marriage unlawful” [Reported by al-Bayhaqi in As-Sunan al-Kubraa, and ad-Daaraqutni in his Sunan. Meaning-wise, it is also found, transmitted on the authority of ‘Abdullaah b. ‘Umar, in the selfsame two collections as well as in Ibn Maajah’s Sunan];
c) The male perpetrator of zinaa is not forbidden from marrying the one he did zinaa with on the aforesaid condition of istribraa’, and is thus more entitled to marry such woman’s mother or daughter whom he did not commit zinaa with.
The advocates of the counter-view have sought to lean on the following proofs:
I) Ibn Mas`ood’s statement, radiyallaahu ‘anhu: “Allah does not look at the man who looked at the private parts of a woman or her daughter” [Reported by ad-Daaraqutni in his Sunan]. They use the indicia found therein as denoting the fact that the mere look at a the private parts of a woman or her mother is forbidden, so the marriage subsequent to zinaa is a fortiori subject to interdiction ;
II) Proscribing marriage with the mother or the daughter of one with whom the man has committed zinaa entails the precautionary safeguarding of private parts and exiting any possible conflict, which is something recommended.
Even a cursory glance at the qualitative weight of the views suffices to tilt the balancing scales of an informed observer’s juristic preference to the former view: Its corroborating proofs are powerful and transpicuous in their clarity, the ruling rests on an explicit textual source, and the counter-arguments of its opponents can easily be rebutted:
Ibn Mas`ood’s statement is by no means explicit in indicating what the ones using it as alleged corroboration says it signifies, since it might well be applicable to a valid marriage; It stops at a sahaabi without being ascribed to the Prophet, Sallallaahu ‘alayhi wa-Sallam, and contradicts what is found in indicators of superior probative value, such as, among others, the aayah of Soorah an-Nisaa’ relied upon by those who legalize such a marriage. Consideration in the fiqh is paid to the stronger probative indicia; The transmission chain of what is reported from Ibn Mas`ood contains two weak narrators, being Hammaad b. Abi Sulaymaan b. Muslim al-Ash`ari Abu Ismaa`eel, and Layth b. Abi Sulaym b. Zunaym al-Qurashi ; Their statement that to veto such a marriage is a safer precaution for the sake of protecting private parts has to yield to the general jurisprudential principle that any such extra precaution can be acted upon only so long as it does not run counter to an outwardly clear proof directly impinging on the mas’alah. In ours, there is an outwardly overt proof of the lawfulness to the zaani of the mother and the daughter of a woman with whom zinaa has been committed, which is represented by the aforementioned aayah of the Qur’aan (in Soorah an-Nisaa’_.
Ultimately, the motivational genesis of this divergence of opinions lies in the tendency of assimilating zinaa in rank to a valid marriage in respect of the legal traces resulting therefrom. Those who, therefore, contemplate the pair of them, valid marriage and zinaa, from the general linguistic viewpoint unifying the two phenomena, subsume zinaa under the category of valid marriages in this regard. Such a jurist then maintains that the mother or daughter of the woman one perpetrates zinaa with is haraam for such man just as his mother-in-law or stepdaughter would be had intercourse pursuant to a valid marriage come to pass. Those who, by contrast, look at the matter from the standpoint of what the law, and not linguistic usage, assigns to the two meanings, restricts the proscription to the intercourse emanating from a valid marriage to the exclusion of the intercourse relating to a context of zinaa.
The one group views any such marriage contract as irregular or faasid (literally, corrupted), and the other one as valid or saheeh, literally, sound.
THE TIMING OF THE CONTRACT and ITS LOCATION
‘Aa’ishah, may Allah be well pleased with her, mentioned that she married and then first cohabited with the Prophet, Sallallaahu ‘alayhi wa-Sallam, in the month of Shawwaal, and recommended that for the women she was related to. Other than that, nothing about a preferable time for contracting a marriage has been transmitted from the Prophet, Sallallaahu ‘alayhi wa-Sallam.
It is preferable to contract a marriage in a mosque as opposed to an expensive hall and the like of such ostentatious place.
When supplicating on behalf of a newly-wed member of his community, the Prophet, Sallallaahu ‘alayhi wa-Sallam, used to say: “Baraakallaahu laka, wa-baraaka ‘alayka, wa-jama`a baynakumaa fi’l-khayr” [Reported by at-Tirmidhi]. He thus called for harmony to prevail between the couple.
During the age of ignorance or jaahiliyyah, the formula of greeting used to be: “By mutual harmony and offspring”. When Islam came, it forbade its use [Cf. Ibn Hajar’s Fathu’l-Baari ].
صلّ الله على سيدنا محمد وآله وصحبه وسلّم تسليما
B. THE TEXT
‘Iqdu’l-Jawaahirith-Thameenah fee Madhhab ‘Aalim al-Madeenah by Ibn Shaas (d. 616 A.H.)
“Book of Marriage” (Kitaabun-Nikaah)
“The examination thereof is encompassed by five sections:
a) The prefatory premises;
b) The pillars and conditions which render the contract valid;
c) The impediments to such a contract, being kufr, slavery, blood consanguinity, relationship by marriage and other causes;
d) The causative agents which establish an option to confirm or withdraw from the contract;
e) The ancillary matters and the corollaries of the discourse on this topic.
These five main sections, in turn, include self-contained sub-sections which elude their categorization under one of these said sections.
First section: Concerning the introductory aspects. They are three:
The first prefatory point: The specificities exclusive to the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam .
The Judge Abu Bakr [b. al-‘Arabi] said : “The Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, has been exclusively singled out with rulings that are not shared by anybody else. This occurs in the arena of the obligatory, the forbidden, and the legitimately permissible. Some of these peculiar specificities have unanimously been agreed upon by the savants, whole others are the subject of a divergence of opinions among them.
consulting with his blood relatives in matters other than revealed rulings of the Law, and 9) the fact that, if he committed himself to a particular undertaking, he would unfailingly persevere in its performance as if an entrenched obligation on himself.
from being deceived away from the obligatory. 9) If he put on his military gear for his ummah, he was not allowed to cast off his armour (until he engaged in actual battle, or until Allah decisively judged between him and his enemy), and 10) he was not permitted to act as judge in a dispute between his person and that of a hostile adversary of his.”
If his gaze fell upon a woman he desired to take as his spouse, it became incumbent on her husband to release her by divorce so that he [Sallallaahu ‘alayhi wa-Sallam] could marry her. Thus it has been stated by the Imam of the Haramayn [= al-Juwayni]. We have elucidated the issue when dealing with how the story of Zayd b. Haarithah unfolded itself. He was 9) specifically permitted to marry without a guardian and without a named dowry, and 10) to marry a woman while in a state of ihraam. He did manumit Safiyyah and made her emancipation from slavery amount to her dowry, though there are divergent views on these matters among the erudite scholars. 11) Equal division of time among his various wives was not made an obligation on him. 12) After his death, marrying his wives was prohibited in respect of any other person, since they are the Mothers of the Believers . There is a dispute of opinions concerning whether his marriage with them subsisted even after his death or was terminated by it.” The Judge Abu Bakr went on to say: “I personally affirm the continuing subsistence of such marriages. If one were to adopt the position that instead they ceased to be spouses by his death, there is a further discrepancy of scholarly viewpoints on whether the ‘iddah was obligatory on his wives or not. The genesis of the dialectical dispute is whether one focuses on their status as wives whose husband has passed away, in which case the ‘iddah would be an act of worship or ‘ibaadah, or whether the focus of one’s reflective contemplation falls on the reality of the ‘iddah as a period of waiting, for in the latter case there would be no need for them to wait before they could legitimately re-marry [given that any such new union was conclusively proscribed] . In a similar vein, a juristic dispute has emerged with regard to any woman he [Sallallaahu ‘alayhi wa-Sallam] divorced: Was she nevertheless made subject to the impermissibility of marrying another husband or not?” ”.
He has been exclusively singled out with 9 (nine) mandatory things:
1) Performing the Forenoon prayer (ad-Duhaa) and 2) slaughtering a sacrificial animal for the Adhaa, 3) supererogatory nocturnal prayer (tahajjud) and 4) the Witr prayer, this last-mentioned one falling within the general class of devotional night prayers, 5) cleaning his teeth with a toothbrush, 6) compelling his wives to conclusively choose between the outer adornment of this world and his person, 7) the discharge of a debt owed by a deceased indigent person,
As for the proscribed matters, he has been singled by the duty of averting ten of them:
1) The receipt of zakaat has been prohibited both to him and to his family members. He has been personally debarred from receipt of voluntary sadaqah; as for such ban extending to his family members, a detailed disparity of juristic views exists on the issue; 2) he has been vetoed from eating garlic and other foul-smelling foodstuffs and from eating in a comfortably settled posture; 3) he has been interdicted from exchanging any of his wives with other women, 4) to keep as his spouse a woman who disliked his marital cohabitation, 5) to marry a woman from Ahl al-Kitaab, 6) and to marry a former slave-woman owned by him; he has been forbidden 7) from “casting a betraying glance” or from “the eye’s deceit”, i.e. to outwardly manifest the opposite of what was in his inward, or
Turning to the concessions which lightened burdens for him, and permissible matters,
1) he was authorized to fast continuously, 2) to enter Makkah in other than a state of ihraam (this concession being a debated issue in respect of our persons), and 3) to fight inside the boundaries of Makkah. 4) He left no heir to inherit his estate. The Judge Abu Bakr [b. al-‘Arabi] said: “The only reason why I mentioned this under the heading of the exclusive legalizing of certain matters is the fact that, when a man approaches his death, the bulk of his estate is removed from his power of disposal, which is then confined only to a third thereof. By contrast, the whole estate of the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, was left intact after his death. 5) It was lawful for him to take exclusive possession of a share of the one-fifth of the booty or khums, or the choicest part of the khums, and 6) to marry more than four wives, just as 7) he was empowered to contract a marriage merely by the declaration of a woman gifting her person to him, without the quid pro quo of a dowry.
A. BEYOND THE TEXT
As al-Hattaab said, it was the method of the later Maaliki scholars to place marriage and its corollaries in the second fourth of their juristic texts, and to consign bay` and ancillary matters to the third fourth thereof [If one looks at Minhaajut-Taalibeen, the work of an earlier Shaafi`i scholar, an-Nawawi, one can see that the sequencing between the two topics is inverted].
Al-Hattaab further explained that “the Shaykh”, meaning Khaleel in his celebrated Mukhtasar, Allah have mercy on him, likewise inaugurated the Book of Marriage in his said abridgment by mentioning the Prophetic specificities “in emulation of what was done by Ibn Shaas”, who in turn had borrowed a leaf in this respect from the Shaafi`iyyah who had said: “That is done because he, Sallallaahu ‘alayhi wa-Sallam, was singled out in the arena of marriage by several exclusive prerogatives, the like of which were not gathered for him in any single other chapter of the fiqh” .
Indeed, scholars who have explored Ibn Shaas’ work have identified and pointed out the similarities in his methodology compared to al-Ghazaali’s in his juristic opus Al-Wajeez fee Fiqh al-Imaam ash-Shaafi`i .
The benefit of listing these specificities is to alert one to their status of exclusive prerogatives which ought not to be mistaken as matters that have been legislated for us as well. In addition to that, they vividly highlight his vast preeminence and his ennobled rank, Sallallaahu ‘alayhi wa-Sallam.
In his said enumeration, Ibn Shaas relied on the mention of such specificities made by Judge Abu Bakr b. al-‘Arabi in his renowned text Ahkaamu’l-Qur’aan , which in turn formed the reference source in this subject for al-Qurtubi in his own Tafseer, Al-Jaami` li-Ahkaami’l-Qur’aan , though al-Qurtubi added certain further points of his own. Al-Qurtubi, with his characteristic methodical mind, made mention of the following:
“What he, Sallallaahu ‘alayhi wa-Sallam, was singled out by is classified under five headings:
1) What was made obligatory to him, Sallallaahu ‘alayhi wa-Sallam, alone, as a way of ennobling him and amplifying the reward for him. One of the savants said that the recompense for the obligatory outweighs the repayment for a supererogatory voluntary deed by 70 degrees;
2) What was made incumbent on him, Sallallaahu ‘alayhi wa-Sallam, for him to carry it out in favour of other than him;
3) What was made forbidden exclusively for him, Sallallaahu ‘alayhi wa-Sallam, again by way of an ennoblement of his person;
4) What was forbidden for other than him for his, Sallallaahu ‘alayhi wa-Sallam, sake;
5) What was made neutrally permitted to him, Sallallaahu ‘alayhi wa-Sallam, without such permissibility being shared by him, Sallallaahu ‘alayhi wa-Sallam, with other than him.
Reference to some of these specificities has occurred in the Qur’aan, while others have been transmitted in the Sunnah. Some of them are agreed upon, whereas others are the subject of scholarly dispute.”
The proof that the Prophet, Sallallaahu ‘alayhi wa-Sallam, was mandated to perform the Forenoon prayer, make sacrifice on the day of ‘Adhaa and pray the witr, is found in a hadeeth reported by al-Bayhaqi, namely, his, Sallallaahu ‘alayhi wa-Sallam, statement: “Three are obligatory on me and supererogatory for you: The slaughtering of a sacrificial animal, the witr, and two units of prayer in the Forenoon.” As for the compulsory nature of the tahajjud or voluntary nocturnal devotions for him, it is based on Allah’s statements in Soorah al-Israa’ and Soorah al-Muzzammil: «And stay awake for prayer during part of the night as a supererogatory action for yourself» [79]; «You who are enwrapped in your clothing! stay up at night, except a little» [1-2].
In Mukhtasar Khaleel, the exclusive obligation to perform witr and tahajjud is said to attach to a state of settled residence as opposed to traveling.
As for the mandatory nature of tooth-brushing, it is rooted in a hadeeth. Al-Hattaab, in Mawaahibu’l-Jaleel, said that no scholar among the Maalikiyyah specified what was the obligatory deed connected to the siwaak, which he found among the Shaafi`iyyah to take the form of the compulsory brushing of his teeth prior to every prayer, and Allah knows best.
Giving a choice to his wives to conclusively opt between worldly adornment and his person is established by the pair of aayaat in Soorah al-Ahzaab 28 and 29.
The proof of the seventh exclusive obligation is encountered in the following transmission: “Whoever dies leaving a debt behind, it is for me to discharge it.” The Andalusian muhaddith Ibn al-Battaal, in his famous commentary on al-Bukhaari’s compilation , said that this haadith abrogated the previous ruling that he should omit reciting the funeral prayer over a deceased who had left behind a debt.
The sphere of applicability of his being singled out for such a discharge of an indigent de cujus’ debt is confined to the scenario where he, Sallallaahu ‘alayhi wa-Sallam, used to liquidate such debts out of the wealth that exclusively accrued to him from what Allah returned to the Muslims of the enemy (fay`: See Soorah al-Hashr). As for the instances where he settled such debts out of the wealth set aside for the Muslims’ general welfare, there was no specificity in that, and indeed that practice was followed by subsequent rulers of the Ummah.
The instruction to consult his relatives in other than revealed laws was done as a mode of pleasing and appeasing their souls, raising their rank and cementing their Deen by fostering additional harmony, even though Allah could dispense with their participatory counsel, and also in order to entrench a practice to be emulated in future by subsequent generations of Muslims.
Al-Hattaab stressed that such exigency existed in spite of the perfection of his knowledge and gnosis. Otherwise, as Imam al-Qurtubi quoted the usooli Ibn Khuwayz Mindaad as averring, consultation of the savants in whatever eludes their knowledge is binding on the rulers, just as it is when they are confronted by problematic matters relating to the Deen, the solution to which is clouded for them in dubiety. Likewise, it is imperative on them to seek advice from their generals in military affairs, from notables in matters of general societal welfare, and from erudite scribes, officers and ministers in what concerns the public good and issues of urbanization, i.e. the ordering of urban life.
Finally, we have mentioned hereabove the unshared obligation to entrench a particular action he, Sallallaahu ‘alayhi wa-Sallam, embarked upon, so that it became an unwaveringly persistent practice of his, Sallallaahu ‘alayhi wa-Sallam, since any discontinuance thereof would indicate an abrogation of such mucilaginous practice. That, obviously, does not signify that he, Sallallaahu ‘alayhi wa-Sallam, was obliged to be engaged in it all the time. Accordingly, the said obligation is not contradicted by the narration stating that he, Sallallaahu ‘alayhi wa-Sallam, used to perform the Forenoon prayer until the Companions used to say “he will never discard it”, and then keep away from praying it until they said “he will never take it up again”, and likewise with continuous fasting.
Concerning the exclusive interdictions, there is no disagreement that receipt of zakaat was disallowed for him and for Banu Haashim who represented his family (aal) according to the dominant position, as underlined by al-Hattaab, as well as their freed slaves (as they became attached to their lineage by walaa’), as explicitly mentioned by Imam al-Qurtubi in his commentary of Soorah Baraa’ah (= at-Tawbah).
As for the prohibition to accept voluntary sadaqah, Khaleel took by the view of Mutarrif, Ibn al-Maajishoon and Ibn Naafi` that it encompassed both his person, Sallallaahu ‘alayhi wa-Sallam, and his family. Ibn ‘Abdis-Salaam declared this opinion to be the dominant one in the madhhab. However, the view of Ibn al-Qaasim and Ibn ‘Abdi’l-Barr was that receipt thereof was not proscribed in respect of his, Sallallaahu ‘alayhi wa-Sallam, family, and this counter-view is supported by the majority of scholars of Ahl as-Sunnah. Again in his commentary of Soorah Baraa’ah, Imam al-Qurtubi explicitly defined it as the sound position, and success is by Allah.
The foul-smelling foodstuffs he, Sallallaahu ‘alayhi wa-Sallam, was banned from eating included raw garlic, onions, leek and radish. As for their cooked versions, it has been soundly narrated by az-Zarkashi among the Shaafi`iyyah that he, Sallallaahu ‘alayhi wa-Sallam, partook of a dish containing cooked onions.
Eating in the form of ittikaa’: The veto is found in a hadeeth reported by al-Bukhaari in his Saheeh: “As for me, I do not eat in a state of ittikaa’.” Al-Qaadi ‘Iyaad defined it as being firmly entrenched on the ground in a comfortable posture, even if sitting, and that included the like of squatting, since it is an inducement to excessive eating. Al-Faakihaani, by contrast, defined the term as leaning on one side, reclined sideways, as that was the plain ostensible meaning of the said wording, and as such excluded any sitting position. This latter view seems to be the stronger, since the narrator of the said hadeeth added the comment: “He was in a state of ittikaa’ and then sat down”, which, according to the construction of al-Qaadi ‘Iyaad, would carry the meaningless signification of: “He was seated and then sat down.” Be it as it may, ‘Iyaad’s position was adopted by al-Khattaabi (the great muhaddith who authored Ma`aalimus-Sunan, a famous commentary on Abu Daawud’s Sunan) and by al-Bayhaqi before.
«After that no other women are halal for you nor may you exchange them for other wives, even though their beauty might be pleasing to you» [Soorah al-Ahzaab: 52] is the fountainhead of another personalized prohibition referred to in the text hereabove. Al-Hattaab said that the dual bar mentioned in the said aayah was a recompense granted to them for their excellent action when he, Sallallaahu ‘alayhi wa-Sallam, extended to them the choice between worldly embellishment and his person and they opted to give preference to him, Sallallaahu ‘alayhi wa-Sallam.
Then the afore-quoted text mentioned the specific prohibition of not keeping as spouse a jealous woman who loathed cohabiting with him, Sallallaahu ‘alayhi wa-Sallam, due to the test of her jealous temperament Allah would subject her to in the Prophetic household. Such a woman would lack the capacity to overpower her jealousy. That is mirrored by the hadeeth reported by al-Bukhaari about the wife who said to him, Sallallaahu ‘alayhi wa-Sallam: ‘I seek refuge in Allah from you’, whereupon the Prophet, Sallallaahu ‘alayhi wa-Sallam, commented: “You have verily sought asylum in One providing a sheltering sanctuary. Go and rejoin your family.”
The historians identify such short-lived spouse as Asmaa’ bint an-Nu`maan al-Kindiyyah. Since the moment the Prophet, Sallallaahu ‘alayhi wa-Sallam, married Hafsah bint ‘Umar b. al-Khattaab, the war of the co-wives within the Prophetic household, fueled by ‘Aa’ishah, radiyallaahu ‘anhaa, erupted. ‘Aa’ishah disliked that another virgin woman might get married to the Prophet, Sallallaahu ‘alayhi wa-Sallam. The internal war eventually led to the Prophet, Sallallaahu ‘alayhi wa-Sallam, secluding himself from all his wives for a full month.
His wives waited for a victim, and she materialized in the shape of Asmaa’ bint an-Nu`maan al-Kindiyyah. She was one of the prettiest ladies of her time in the Yemen. ‘Aa’ishah immediately sensed the challenge posed by her ravishing beauty. She thus arranged an impromptu meeting with her co-wives, with Hafsah as the deputy chair thereof, and they hatched a plan. They instructed her on what to do and what to avoid in order for her to please her new consort, and counseled her to take refuge in Allah as soon as he secluded himself with her for the sake of sexual cohabitation. She followed their instruction, and when she uttered what al-Bukhaari reported, he, Sallallaahu ‘alayhi wa-Sallam, instantly separated from her and ordered her to enjoy the company of her family relatives again. Her father then sent an emissary to mediate her return to the Prophetic household, even though he was aware of the co-wives’ contrivance. The Prophet, Sallallaahu ‘alayhi wa-Sallam, did not, however, modify his initial stance, and commented: “They are the female companions of Yoosuf [‘alayhis-salaam]: Without a doubt their guile is very great [inna kaydahunna ‘azeem].”
Al-Hattaab added that sexual cohabitation with a woman from Ahl al-Kitaab owned by his right hand, Sallallaahu ‘alayhi wa-Sallam, was also made illicit for him, based on the juristic view selected by Judge Abu Bakr b. al-‘Arabi; the said commentator of Khaleel’s work, however, maintained that the sounder view was that he was lawfully allowed to take kitaabiyyaat as slave-women.
“To be deceived away from the obligatory”, as al-Hattaab clarified, meant that it was not licit for him, Sallallaahu ‘alayhi wa-Sallam, to allude to what was neutrally permissible, such as killing or inflicting a physical beating, contrary to what he was outwardly manifesting and what the state of the matter was openly bringing to light. The proof of that being forbidden in respect of him, Sallallaahu ‘alayhi wa-Sallam, is his statement, Sallallaahu ‘alayhi wa-Sallam: “It was not for a Prophet to indulge in “the eyes’ deceit”” [The expression khaa’inah al-‘ayn is found in Soorah Ghaafir: 19]. Al-Haakim said that the narration was saheeh according to Muslim’s criteria of authenticity. It has however been asserted that, if he planned to travel, he was allowed to disguise himself as somebody else, and Allah is the grantor to success.
The motivational basis of the proscription to judge in a matter between him and an opponent of his was the necessity to avoid telling lies about Allah and His Messenger. The proof of the said interdiction is found in His statement, may He be Exalted: «You who have iman! do not put yourselves forward in front of Allah and of His Messenger» [Soorah al-Hujuraat: 1]. In commenting on this aayah, the great Follower Mujaahid said that it meant: “Do not utter lies about the Messenger of Allah until Allah judges through the tongue of His Messenger.” Al-Bukhaari mentioned this interpretation.
And now we tackle the special concessions:
Al-Ubbi, in his commentary on Muslim’s Saheeh titled Ikmaalu’l-Ikmaal, quoted an-Nawawi as stating in his own sharh on the said collection that “continuing fasting” or wisaal as-sawm meant to fast uninterruptedly two or more days in a row. Al-Qaadi ‘Iyaad said that such continuation of fasting was disliked by Maalik and the bulk of the scholars of Ahl as-Sunnah, because of the general prohibition of such undertaking. Another group of scholars permitted it, and contended that its general interdiction was only in the nature of a mercy and lightening of burdens, hence the one able to do so would be free from any hardship in the Deen were he to do so. Al-Lakhmi (in his masterwork At-Tabseerah) selected the view of its permissibility up to the time of sahoor, because of the following hadeeth: “The one who fasts uninterruptedly should keep on fasting until the pre-dawn time.”. Al-Khattaabi regarded it as one of his, Sallallaahu ‘alayhi wa-Sallam, exclusive prerogatives which was haraam on the members of his ummah. Al-Ubbi quoted an-Nawawi as saying that “for us” (meaning the Shaafi`iyaah) the prohibition of uninterrupted fasting for a number of consecutive days indicated that it was made unlawful or haraam.
The Prophet, Sallallaahu ‘alayhi wa-Sallam, killed ‘Abdullaah b. Khatil while the latter was hanging onto the drapes covering the Ka`bah. In a hadeeth, the following has been mentioned: “Say that Allah has verily made it lawful to His Messenger but did not render it licit for you” (= to kill someone inside the venerable city of Makkah). In another narration it is mentioned that it has been legalized for him only in respect of a period within the morning.
One share of the one-fifth of the booty or khums, as we know, is reserved for the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam. As ad-Daawudi mentioned in his book Al-Amwaal (published in English in New Delhi by Kitabbhavan), some of the scholars held that Allah made part of the spoils of war for His Prophet exclusive to him as He so willed. Of all that which was made exclusive for him was that for which neither horses nor camels were ever used [See Soorah al-Hashr]. Whenever the Prophet, Sallallaahu ‘alayhi wa-Sallam, attended the division of the booty, he had the choice spoils of war (as-safaayaa), one share along with the people in the four-fifths and another share in one-fifth (= khums al-khums). The choice booty is taken first, before the others take their shares. But if the Prophet, Sallallaahu ‘alayhi wa-Sallam, was not present at the time of the distribution, he had his share of one-fifth and one share like the people in the four-fifths. As related by al-Mawwaaq in At-Taaj wa’l-Ikleel from Ibn ‘Atiyyah’s tafseer, “the Prophet, Sallallaahu ‘alayhi wa-Sallam, was exclusively singled out, in terms of the spoils of war, by (a share of) one-fifth of the khums, and, in addition, to him belonged the choicest spoils which he would take prior to the division of the war booty, be it a mount or a sword”.
The proof of the permissibility for him, Sallallaahu ‘alayhi wa-Sallam, of marrying the self-gifting woman and one whom Allah had directly given in marriage to him, is embedded in His statement, Exalted is He: «Then when Zayd divorced her, We married her to you» [Soorah al-Ahzab: 37]. He, Sallallaahu ‘alayhi wa-Sallam, was further allowed to take any woman he wished as his spouse without her consent or that of her guardian. Allah in fact said: «The Prophet has closer ties to the muminum than their own selves» [Soorah al-Ahzab: 6], and He likewise said: «When Allah and His Messenger have decided something, it is not for any man or woman of the muminum to have a choice about it» [Soorah al-Ahzaab: 36].
Another special concession to him, as we have recorded hereabove, is that he, Sallallaahu ‘alayhi wa-Sallam, was not constrained by the obligation to spend equal time among his wives. The matter was left to his discretion: If he wanted to abide by what was the norm for other than him, he did so, and otherwise he did not. The corroboration of that lies in His statement: «You may refrain from any of them you will and keep close to any of them you will. And if you desire any you have left alone, there is nothing wrong in that» [Soorah al-Ahzab: 51]. Judge Abu Bakr b. al-‘Arabi stated that he, however, chose to keep to equal division of time though he was not mandated to do so, Sallallaahu ‘alayhi wa-Sallam, as a way of putting their souls at ease, and of protecting them from the voicing of their jealousy which might lead to something unbefitting.
Khaleel, in his Mukhtasar, mentioned a number if other specificities within each of the three categories, for instance, the fact that he was allowed to pass judgments while angry, as evidenced by the narration in al-Bukhaari’s work that he, Sallallaahu ‘alayhi wa-Sallam, ruled in favour of az-Zubayr (b. al-‘Awwam) against a man from the Helpers who had deposited something in az-Zubayr’s safe custody. The Ansaari had voiced an angering. ‘well, he is the son of your maternal uncle, after all.’ Also, his sleep, Sallallaahu ‘alayhi wa-Sallam, did not obligate the breaking of his ablution, as related by Muslim from Sufyaan in his Saheeh
We do not need to exhaust our discourse on this subject: Let the participants have a look at the remainder of those peculiar exclusivities in Khaleel’s text and the commentaries thereon.
B. BACK TO THE TEXT
“The second prefatory point: Marriage is recommended for one whose self harkens to it, provided he is capable of marrying. Shaykh Abu Muhammad [= Ibn Abi Zayd al-Qayrawaani] said: ‘In Al-Waadihah and other texts it has been narrated that the Prophet, Sallallaahu ‘alayhi wa-Sallam, said: “You ought to get married, as that is more effective in lowering the gaze and protecting one’s private parts” . He also urged his followers to marry women who had not experienced cohabitation by prior lawful marriage, i.e. virgins , and stimulated in the members of his nation the desire to choose as spouses fertile women .
Judge Abu Bakr [b. al-‘Arabi] said: “Let the prospective husband look at the woman he proposes to before concluding a contract of marriage. It has been transmitted in the hadeeth that al-Mugheerah proposed to a woman (“in the dark”), and that the Prophet, Sallallaahu ‘alayhi wa-Sallam, said to him: “You must have a look at her, since that is more capable of generating mutual congeniality and harmonious concordance between the pair of you” .
He should limit himself to looking at her face and hands” .
According to the narration related from Ibn al-Qaasim , he needs her permission to look at her, and it has been deemed disliked in it (= Al-Mudawwanah) that he should stealthily cast a glance at her, when she is caught by surprise by such act.
(Muhammad b. Yahyaa has narrated the following in Al-Madaniyyah : “There is no harm if he looks at her while she has her clothes on”) .
Judge Abu’l-Waleed [= al-Baaji] said: “It is possible that what he intended by it was to look at her while she is unawares, so long as he positively knows that she has her clothes on, and it is likewise legitimate to construe his sentence as entailing that he looks at her after she has sought her authorization to do so”.
Marriage and the possession of a slave woman by the right-hand, when the latter entitles a man to cohabit with such slave-woman sexually, render it permissible to the parties to look at each other’s private parts.
The following proviso, however, has been mentioned: “It is reprehensible to look at the private parts for the sake of medical examination, since it has been asserted that such an act enfeebles one’s eyesight” .
It is permissible to look at a woman’s face in order to be a possible testimonial protagonist in a case, and, in consonance with the outward position of the madhhab, to look at the private parts so as to be a potential witness to the act of zinaa.”
A. BEYOND THE TEXT
i) The legal value (hukm) of marriage
We saw that Ibn Shaas laid down only the “general” ruling on marriage, which is its nadb or recommended nature as a meritorious act.
In setting out its ruling in a more detailed fashion, Ibn Juzayy had this to say in Al-Qawaaneen al-Fiqhiyyah :
“It is not permissible to enjoy private parts save as a result of marriage or ownership by the right hand [= the latter being neutrally permissible by ijmaa`].
From a general viewpoint, marriage is meritoriously recommended or mandoob , whereas the Literalists deemed it compulsory, whereas, from a detailed visual angle, it branches out into five different types:
a) It is obligatory or waajib for the one who is capable of fulfilling its financial obligations and fears he would otherwise commit zinaa. In Al-Muqaddimaat al-Mumahhidaat, Ibn Rushd the grandfather stated that one who needed marriage and could not endure living without women, and lacked the material means to purchase slave women along with the fear of committing zinaa were he not to marry, was obligated to marry. The bulk of the jurists from all the schools thus trace the compulsory variety of marriage to one able to take on its financial duties and conjoins that to an intense desire for marriage and the certainty, or at least a though on a preponderance of probabilities, that he would otherwise slip into the prohibited. In the event the said preponderance of thought applies, some of the Hanafiyyah have deemed such a marriage “waajib” by ijmaa`. It is well known that the waajib is for them qualitatively lower than the fard as it is not grounded on a textual authority indicating conclusive certainty;
b) It is praiseworthy or mustahabb in the event that one is capable of discharging its material duties but has no fear of falling into zinaa were he to leave it out (and is thus not strictly necessary for him). Ibn Rushd the grandfather, in the said text, said in this connection: “It has been narrated from ‘Umar b. al-Khattaab, radiyallaahu ‘anhu, that he used to say, ‘I marry a woman without any need for her, and I cohabit with her without craving for her sexually.’ He was asked to explain what would induce him to do so, whereupon he replied, ‘Out of love of the fact that, out of my loins, there will emerge those by whom the Prophet, Sallallaahu ‘alayhi wa-Sallam, will outnumber the other Prophets on the Day of Rising; I have indeed heard him [Sallallaahu ‘alayhi wa-Sallam], say, “You ought to marry virgins. They have sweeter mouths, better character, and more receptive wombs to childbirth, and I shall verily expand may ummah through you on the Day of Rising” [A hasan hadeeth reported by Ibn Maajah in his Sunan and by at-Tabaraani in Al-Mu’jamu’l-Awsat]’;
c) It is prohibited or haraam if he neither can render justice to its financial commitments nor is afraid of stooping into zinaa otherwise. Al-Ghiryaani mentioned that if harm attaches to the wife as a result of such a union, as in the case of lack of maintenance, or being enabled to maintain her only through haraam means, or omitting sexual cohabitation, marriage turns into a proscribed act;
d) It is reprehensible or makrooh as regards the man who does not fear perpetrating zinaa if he stays unmarried yet is afraid that he cannot do justice to its financial and other related burdens. Al-Ghiryaani adds the scenario of the man who lacks a craving for women and does not desire offspring, and who at the same time is scared that marriage will act as a barrier against his perseverance in worship he has grown accustomed to carry out;
e) It is neutrally permissible or mubaah in all other situations. Al-Ghiryaani refers in this context to marriage being mubaah in respect of the infertile man who has no desire in women, such as old or sick men. In that he echoed Ibn Rushd the grandfather who said: “If he were an ascetically abstinent person who stays away from engrossment in sensorial pleasures, or impotent or infertile, and is aware that he cannot beget children, it is neutrally permissible for him to marry, and success is by Allah the Exalted.”
In his masterful text At-Talqeen , Judge ‘Abdu’l-Wahhaab al-Baghdaadi said that marriage was recommended without any compulsion, and that the women one can lawfully cohabit with as spouses fall into two types: Free women and (erstwhile) slave women. As for the former category, marrying them is unrestrictedly permissible, whereas, in respect of the latter, it is permissible if two pre-requisites combine: a) the incapacity to financially legitimize a marriage with either a Muslim woman or a woman from Ahl al-Kitaab based on the sound opinion, by paying the dowry and b) the fear of descending into zinaa, as indicated by His statement, Exalted is He: «If any of you do not have the means to marry free believing women, you may marry slave girls who are believers» [Soorah an-Nisaa: 25].
The legal position of a woman, in this whole connection, is analogous to a man’s: She might be compelled to marry if she fears indulging in zinaa and she can fulfill the marital rights, or debarred from contracting one were she to be unafraid of stepping into zinaa and aware of her incapacity to abide by her conjugal duties, and so on.
As we have seen, all the four extant madhhabs of Ahl as-Sunnah do not obligate Muslims to marry. The anomalous position in this regard is that of the Zaahiriyyah.
In his splendid text on comparative fiqh, Al-Ishraaf ‘alaa Nukati masaa’ili’l-Khilaaf, Judge ‘Abdu’l-Wahhaab al-Baghdaadi, had this to say in mas’alah no. [1222]:
“Marriage is recommended without being obligatory, contrary to the view of Daawud [= the founder of the literalist school of jurisprudence], due to his statement, Sallallaahu ‘alayhi wa-Sallam: “O assembly of youth! Whoever among you is capable of marrying should do so”. He [Sallallaahu ‘alayhi wa-Sallam] thus confined the command to the young people, which thing evidences the absence of its obligation. That is so given that its purpose is sexual cohabitation which in itself is not compulsory. If that is so with regard to its effect, the cause thereof is a fortiori not mandatory. In addition, it is a commutative contract (‘aqd muwaada`ah) and thus initiating it is not commanded by the Law, exactly as with a contract of purchase and sale. Further to the aforesaid, it is a contract whereby one attains the legitimization of the pudenda precisely as it occurs by purchasing a slave woman [which is an optional contract], and is thus a contract enabling lawful intercourse in the same way that a contract to buy a slave girl for that purpose is.”
In his tafseer of the Qur’aan (Mafaateehu’l-Ghayb), the Shaafi`i ar-Raazi stressed that the correct position, which was the one propounded by his Iman, was that celibacy was superior to marriage.
In Minhaajut-Taalibeen, Imam an-Nawawi stated that marriage was a reproachable act for a man who did the feel the need of it, and was not able to support the expense; but not for one who, though not needing it, was yet able to undertake its obligations. “It is preferable, however, that such a person should remain a celibate and devote himself entirely to religious practices” was his textual close.
The jurists have distinguished between the temperate nature (a desire for marriage which is not overwhelming, al-i`tidal), and the longing characteristic of an overpowering desire and urge to marry.
Ash-Shaafi`i’s said view related to the temperate condition =
He views devotion to worship of Allah preferable over marriage in a state of temperance. As the Shaafi`i al-Muzani said, his Imam stressed the preeminence of marriage for the one whose soul harkens to it, as that has been commanded by Allah as a recommended act pleasing to Him; but if one’s self does not longingly urge him to that, he should preferably devote himself to worship. The praising mention of Prophet Yahyaa in the Qur’aan has been inter alia used in support of this view.
Some modern scholars have doubted the verbalization of the said view from Imam ash-Shaafi`i himself in a direct text transmitted from him, and have emphasized that in Al-Umm he did not explicitly alluded to the renunciation of marriage save for men and women in whom a craving for it has not been created. Allah knows best the truth.
Imam an-Nawaawi himself never married. Otherwise, the main purpose of marriage for the Madinans is to populate the earth by righteous offspring, and the second cause thereof, lawful sexual gratification, has been made a vehicle to achieve the said main objective.
In the Book of Marriage in Mu`eenu’l-Hukkaam ‘ala’l-Qadaayaa wa’l-Ahkaam, a marvelous work authored by Ibn ‘Abdir-Rafee` (d. 733 A.H), it is mentioned that Allah said: «If you are afraid of not behaving justly towards orphans, then marry other women who are pleasing to you, two, three or four; but if you are afraid of not treating them equally, then only one, or those you own as slaves» [Soorah an-Nisaa’: 3] (Incidentally, az-Zamakhshari said in his tafseer of this aayah that in his age it was better to have a multiplicity of slave women).
The fuqahaa’, Ibn ‘Abdir-Rafee` commented, have maintained that that contained (together with the afore-quoted aayah of Soorah ar-Ra`d) the proof of marriage not being obligatory, since Allah gave a choice between it and something, i.e. the ownership of slave women for the sake of sexual gratification, which is not mandatory by unanimous consensus, since there is no selection of alternative options with regard to the obligatory, or, as Ibn Rushd al-Jadd put it, “no grant of alternative options between the obligatory and the non-obligatory can be sound, as that would remove the obligatory from obligatoriness”.
The Prophet, Sallallaahu ‘alayhi wa-Sallam, said, “Four are among the established practices (sunan) of the Messengers: Circumcision, the use of perfume, tooth-brushing, and marriage” [Reported by at-Tirmidhi and by Ahmad in his Musnad].
He, Sallallaahu ‘alayhi wa-Sallam, further said: “The one whom Allah has safeguarded from falling into the evil of two things shall enter the Garden: What lies between his two jawbones, and what lies between his two thighs (Repeated thrice)” [Reported by Maalik in the Muwatta’, the Book of Speech, as well as by al-Bukhaari, with a fully connected chain on the authority of Sahl b. Sa`d, the Book of Heart-Softening Matters, the chapter thereof on safeguarding one’s tongue].
Summing up the matter, Ibn Rushd stated as follows in Al-Muqaddimaat:
“Allah the Exalted said: «[T]hose who guard their private parts – except from their wives or those they own as slaves, in which case they are not blameworthy» [Soorah al-Mu’minoon: 5-7]. Such statement of His is a pointer to the fact marriage is not mandatory, since the one who guards his private parts from zina through ownership or slave women or by renouncing marriage is deserving of being included by Allah’s aforesaid praise, Mighty and Majestic is He.
Section: Once the said proofs have firmly entrenched the reality that marriage is not obligatory, it becomes known that the ostensible commands directed to marriage in the Qur’aan, as in His statement, «then marry (ankihoo) other women that are pleasing to you» [Soorah an-Nisaa’: 3], or his statement, «marry off (ankihoo) those among you who are unmarried and those of your slaves and slavegirls who are saalihoon» [Soorah an-Noor: 32], do not convey an obligation to do so. If their import is not to instruct a compulsory act, they nevertheless indicate something meritorious and not just neutrally permissible. The proof thereof lies in the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, urging the members of his nation to marry, and his prohibition of ascetic celibacy, i.e. renouncing marriage (…). He said: “Whoever loves my natural state of being or fitrah should emulate my Sunnah and be moulded thereby” [A good hadeeth reported by Al-Bayhaqi in his Sunan] (…) He further said: “Allah has legalized nothing dearer to me than marriage”, as well as: “Poor, poor is the man devoid of a wife; poor, poor is a woman bereft of a husband.” The question was posed: ‘Even if he has material riches?’. He [Sallallaahu ‘alayhi wa-Sallam] replied: “Yes, even if he were materially affluent.” He likewise said, Sallallaahu ‘alayhi wa-Sallam: “There is no monasticism in Islam. May Allah curse the ascetic men and women who forsake marriage” as if it were a laudable practice or part of the Revealed Law [cf. Musnad Ahmad]”.
ii) The issue of looking at a woman with the aim of possibly marrying her
In al-Bukhaari’s Saheeh, it is narrated from Abu Hurayrah that he said: I was in the company of the Prophet, Sallallaahu ‘alayhi wa-Sallam, when a man came and informed him that he had married a woman from the Helpers. The Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, said to him inquiringly: “Did you have a look at her?”. The man replied in the negative, whereupon he [Sallallaahu ‘alayhi wa-Sallam] said: “Go to her, since there is something unusual in the eyes of the Helpers”. There is also the aforementioned hadeeth [declared to be hasan by at-Tirmidhi] concerning the incident of al-Mugheerah b. Shu`bah.
The face ought to be looked at to get an idea of the woman’s skin colour and beauty, whereas the hands clue the suitor about the softness or roughness of her body. In Al-Kaafi, Ibn ‘Abdi’l-Barr has mentioned that the lawfulness of looking at those parts was attributed to the fact they did not need concealment in the prayer.
Al-Ghiryaani said that, if one were to ask what was the usefulness of this ruling given that the face and hands were not considered ‘awrah in any event, and that looking at such bodily parts would thus be permissible to both a suitor and any other man, the answer to such question would reside in the fact that the suitor is indeed distinguished from the rest of men by the fact that it is permissible for him to look at the face and the hands the way a person scrutinizing beauty would do, whereas such an intense scrutiny would represent a wrongdoing if it issued forth from other than him. Ad-Dardeer said in Ash-Sharh al-Kabeer that even a suitor would be in the wrong if by his look he intended a mere sexual gratification.
It is likewise permissible for a suitor to mandate a man or a woman to look at the face and hands of the one he is proposing to qua his agent. If the person designated for such a task happens to be a woman, it would be permissible for such agent to see more than just the face and the hands, by virtue of Anas’ hadeeth to the effect that the Prophet, Sallallaahu ‘alayhi wa-Sallam, dispatched Umm Sulaym to look at a young woman, and briefed her by saying: ‘Smell the teeth lying between the middle incisors and the molars, and look at her Achilles’ tendon.” In fact, if it protrudes out it points to slimness and, by contrast, it evidences fleshiness in case it does not stick out.
We have had a look hereabove at the narration from Ibn al-Qaasim and the (more permissive) one from Muhammad b. Yahyaa in Al-Madaniyyah.
It is thus one opinion in the madhhab that a man with a good intention might cast a glance at a woman without informing her first and obtaining her authorization, because of the hadeeth narrated by Jaabir b. ‘Abdillaah that he said: ‘… I proposed to a young woman. I hid myself from her view so that I could behold in her what induced me to take her as wife’ [Reported by Abu Daawud].
Khaleel’s preference fell instead on Ibn al-Qaasim’s position, which is ascribed to Maalik, though modern scholars have considered it a weak narration; hence he quoted it as the single ruling in the mas’alah in his famous abridgment. Al-Ghiryaani, too, lent preeminence to the view that it was disliked for a suitor to look at the woman he proposes to without her consent or that of her guardian, while recognizing the existence in the madhhab of the other, more permissive view which coincides with that of the Shaafi`iyyah. His choice of the “harder” view is aimed at blocking the means to corrupted people using a marriage proposal as a way of scrutinizing forbidden parts of women under the pretext of being genuine suitors. Another motivational basis listed by classical jurists endorsing this more rigid view was that a reluctance on her part to be seen by a suitor meant there was no much receptiveness to the marriage proposal in the first place [Cf. Dr. Muhammad Beltaaji’s Fee Ahkaami’l-Usrah].
The legal ruling is however that it is forbidden to seclude oneself with a woman one contemplates to make a marriage proposal to, be it in a house or a car. She remains a stranger forbidden to him. Only the marriage contract produces such effect.
The woman is just as entitled to l
The legal ruling is however that it is forbidden to seclude oneself with a woman one contemplates to make a marriage proposal to, be it in a house or a car. She remains a stranger forbidden to him. Only the marriage contract produces such effect.
The woman is just as entitled to look at her suitor, obviously, as the man is.
The Shaafi` position stated by an-Nawawi in the aforesaid text is that the practice of seeing a woman one proposes to marry, even without her knowing it, and even several times, is allowed before demanding her in marriage. That is the same as the Hanbali ruling in the matter, provided, of course, that the woman has her clothes on. The literalists took instead by the outward wording (the generic Prophetic instruction, “look at her (undhur ilayhaa)”, whereas al-Awzaa`i deemed it licit for the suitor to cast a look at the parts of the body where her flesh is visible.
Of course, the Shaafi`iyyah not only allow a husband or a wife to look at every party of the spouse’s body, but they agree with the Madinans that the permissible look by a suitor extends to the woman’s face and hands, whereas Abu Haneefah allows him to look at her feet, too.
In Al-Ishraaf ‘alaa Nukati’l-Khilaaf, Judge ‘Abdu’l-Wahhaab tackles the subject under mas’alah no. [1223]:
“It is lawful for whoever intends marrying a woman to look at her face and hands, contrary to those scholars who prohibited looking at her altogether, contrary to those scholars [meaning the literalists] who legalized the look at the entirety of her body save for her private parts, frontal and posterior, and contrary to Abu Haneefah who deemed it licit for the suitor to look at her feet as well. The proof of our said position is embedded in his, Sallallaahu ‘alayhi wa-Sallam, statement: “If any of you wants to marry a woman, he should look at her face and hands” [It is not found in any extant textual source. A similar narration is reported in Abu Daawud’s Sunan, the Book of Marriage, the chapter thereof on the man looking at the woman he intends marrying. It has been narrated on the authority of Jaabir that the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, said: “If any one of you were to propose to a woman, let him, if possible, look at her to the extent of what urges him to marry her.” As the phrases used “in istataa`a” (= if he can) and “fa’l-yaf`al” (= let him do it) clearly demonstrate, no instruction of doing the compulsory is entailed].
The Madinans’ position is the view taken by the bulk of the jurists, by ash-Shaafi`i and by the literalists, inter alia. No heed is paid, because of the refuting sound ahaadeeth and aayah 52 of Soorah al-Ahzaab, «even though their beauty might be pleasing to you», to the statement of those who alleged the reprehensibility of looking at her face and hands. Sahl b. Abi Khaythamah said: I saw Muhammad b. Maslamah stalking Thubaytah bint ad-Dahhaak … in al-Madeenah (= looked at her without her knowledge, until he beheld her by a palm-tree), whereupon I asked him: ‘Do you do something like this, and yet you are a Companion of the Messenger of Allah?’. He answered: ‘Yes! The Prophet, Sallallaahu ‘alayhi wa-Sallam, said: “If Allah casts in the heart of any one of you the determination to propose marriage to a woman, there is no harm in looking at her”.’
That a suitor can look, before the nuptials, at a woman he proposes to marry, is something Imam Abu Haneefah, Maalik and ash-Shaafi`i are in agreement with.
B. BACK TO THE TEXT AGAIN
“The third prefatory point: A marriage proposal is a meritoriously recommended act. An explicit such proposal to a woman observing the ‘iddah (tasreeh) is haraam, whereas an allusive reference thereto (ta`reed) is permissible. Such allusion consists of a speech that conveys the intended meaning of something without expressly mentioning it. The word is taken from the ‘urd of something, that is, its side. It is as if the allusive suitor was hovering around marriage without actually descending into it and stooping inside, or as if he was ambulating around it without eventually alighting by it. On the other hand, tasreeh is the explicit verbalization of something and the disclosure thereof by its overt mention.
Judge Abu Bakr [b. al-‘Arabi] said: “What Maalik inclined to in the matter of allusive reference is for the man to say: ‘I am indeed delighted by you, and you have somebody who shows to you love and who is desirous of you’. In my view, this is the most potent variety of allusion and as close as one can get to explicit asseveration.” The judge then went on to state: “What I deem nice for him to utter is: ‘Surely, Allah the Exalted is convoying some good to your person. Rejoice, then, as you have a ready market.’ If the suitor were to say something more direct than what I mentioned, it would be closer to an explicitly overt declaration.”
It is forbidden to make a marriage proposal over the one of another person after the woman has manifested her assent. The mutual leaning of the prospective spouses towards one another is equivalent to a positive assent.
However, is the said interdiction dependent on the confirmation of a named dowry, or does it set in merely as a result of a reciprocal inclination towards one another escorted by a mutual drawing close in terms of feeling satisfaction with each other, even though the two would-be spouses have not yet reached agreement on a dowry?
(There are two mutually conflicting views. The first one has been attributed to Ibn Naafi`, and the second one has been narrated by Ibn Habeeb from Ibn al-Qaasim, Ibn Wahb, Ibn ‘Abdi’l-Hakam , Mutarrif and Ibn al-Maajishoon).
Judge Abu Bakr [b. al-‘Arabi] said: “The former view is the sounder of the two, since the omission to mention a dowry is a rare occurrence, and agreement on the naming thereof is the root of consensus. So long as a dowry has not been made mention of, there is no leaning towards mutual propinquity.”
The judge went on to state further: “Our learned men have said: The aforesaid prohibition only subsists if the two prospective spouses are qualitatively similar. If they are qualitatively at variance, it is permissible for one who is a match to her to make a proposal over and above the first suitor’s proposal.” The judge commented: “This is something about which no discrepancy of opinions is befitting.”
Ibn al-Qaasim said in Al-‘Utbiyyah: “I see no harm in the like of this match intervening in the matter with his own counter-proposal. I cannot see the hadeeth as referring to other than two male suitors whose qualitative level is more or less analogous. As for the scenario when one is dissolute and the other righteously wholesome, it has no application.”
Two derivative rulings:
a) If a person dares to perpetrate the said prohibited act of a proposal over his brother’s, he has committed a sinful wrongdoing, and should be subjected to a discretionary punishment by a judicial authority.
If he has contracted a marriage in that fashion, the said contract is not annulled, i.e. rescinded on the basis of faskh , as stated by Ibn al-Qaasim and ‘Abdu’l-Malik.
(As for Ibn Muzayn, he has narrated the following from Ibn Naafi`: “It is rescinded if sexual cohabitation has not taken place.” Ibn Habeeb in turn narrated from him that “it is rescinded regardless of whether sexual cohabitation has occurred or not”) .
Judge Abu Bakr [b. al-‘Arabi] said: “The sound view is that there is no annulment by rescission” . As for Judge Abu Muhammad [b. ‘Abdi’l-Wahhaab al-Baghdaadi], he said, by contrast: “What is indicated by the outward position of the madhhab is that such a contract is rescinded” .
b) This is a sequitur to part of what has been mentioned hereabove, i.e. If we adopt the standpoint that such a contract is not rescinded, then al-‘Utbi has narrated from ‘Eesa from [‘Abdullaah] Ibn Wahb what is stated hereunder: “It is recommended for this contracting husband [who has superimposed his overlapping proposal over the prior one of his fellow brother in faith] to return repentantly from his deed and to lay the spouse before the original suitor. If he loosens the original suitor from the impeding knot of the supervened marriage contract, I hope that this contracting husband finds a way out of the wrongdoing that he has perpetrated. If, instead, he refuses to release the original suitor from the supervened knot, he ought to separate from his wife. If he does so and the first suitor then marries her, it is all good and well. If, conversely, the original suitor does not proceed with the marriage, then the second suitor can contract fresh nuptials with the woman” . ‘Eesa said: “Ibn al-Qaasim said: “If the subsequent suitor does not free the original one from the fettering impediment of the marriage contract, he ought to seek Allah’s forgiveness. Legally, however, he is not bound by anything” .
Finally, it is permissible to speak the truth about the evil traits of character of a suitor if it is done to put one on guard against them ; and it is meritorious, both at the time of the marriage proposal and at the time of concluding the marriage contract, to deliver a khutbah.
A. BEYOND THE TEXT
i) The marriage proposal
It consists in the male suitor or his agent approaching the woman or her guardian to ask her hand in marriage, being the means through which the would-be spouses can get acquainted with one another. It is recommended.
If one is consulted about a potential match, he ought to allude to whatever he knows about him or her of good or evil, in so doing emulating the statement of the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, to Faatimah bint Qays as we have remarked hereabove. Such feedback is not regarded as a prohibited backbiting (gheebah) and falls out of its ambit to enter the circle of good counsel to the Muslims which is part of the Deen.
It is permissible for a woman to offer herself in marriage to a righteously wholesome man, out of desire to scoop from his wholesomeness. The following has come down in an authentic hadeeth: A woman came to the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, and offered herself in marriage, saying: ‘Messenger of Allah, have you got any need of my person?’. The daughter of Anas (b. Maalik) critically commented: ‘How scant is her modesty, and how evil her manner!’, whereupon Anas retorted: ‘Nay, she is better than you. She displayed desire in the Prophet, Sallallaahu ‘alayhi wa-Sallam, and offered her hand to him in marriage’ [Reported by al-Bukhaari].
In a similar vein, a man can offer in marriage his daughter or sister to good individuals. It has come down in a sound narration that, after his daughter Hafsah became a widow following the death of her husband Khunays b. Hudhaafah as-Sahmi, ‘Umar said: I visited ‘Uthmaan b. ‘Affaan and offered to him Hafsah’s hand in marriage. ‘Uthman said, ‘I shall reflect on the issue.’ ‘Umar went on to narrate: I spent days before I met him again. ‘Uthmaan said, ‘What I thought about the matter is not to marry her at the moment.’ ‘Umar then said: I subsequently met Abu Bakr as-Siddeeq and I said, ‘If you so wish, I have given you Hafsah bint ‘Umar in marriage.’ Abu Bakr kept silent, and did not supply me with any feedback on the issue. I felt greater affection for him than I did for ‘Uthmaan. I spent some days waiting for his reply, whereupon the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, proposed to her, and I gave her in marriage to him. Abu Bakr subsequently met me and said, ‘You showed affection to me when you offered Hafsah to me in marriage, but I supplied you with no reply.’ I (= ‘Umar) commented, ‘That is true.’ Abu Bakr then explained, ‘Nothing stood between me and communicating to you that I did accept the offer you made to me but the fact that I had come to know that the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, had mentioned her, and I would never have divulged the secret of Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam. Had the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, left her aside, I would have accepted her’ [Reported by al-Bukhaari ].
In Al-Ishraaf ‘alaa Nukati’l-Khilaaf, Judge ‘Abdu’l-Wahhaab said the following about the mas’alah of a “marriage being concluded by the verbal formulas of donation and sale” [1251]:
“Marriage is validly concluded by using the wording of a donation or a sale. Every verbal formula indicating a transfer of ownership necessitates the perpetuity of such ownership without any temporal demarcation. Ash-Shaafi`i, by contrast, asserts that marriage cannot be concluded save by resort to two phrases only: “I have married you” (Ankahtuki & Zawwajtuki). Our proof is His statement, Exalted is He: «[A]nd any mu’min woman who gives herself to the Prophet» [Soorah al-Ahzaab: 50].
A man once proposed to a woman, and the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, said: “I have given you marital authority over her (= mallaktuhaa) in return for what you know of the Qur’aan” [Cf. Al-Muwatta’, the Book of Marriage]. An additional corroboration lies in the fact that the wording of transferring ownership does not necessitate a temporal limitation, and it thus resembles the wording of nikaah or tazweej (= giving in marriage). Further to the aforesaid, marriage is a commutative contract (‘aqd mu`aawadah), and it is thus permissible to be concluded, exactly like sale, via more than just two verbal formulas.”
We shall come back to aspects of this general topic when dealing with the first pillar of marriage or the formula of offer and acceptance.
ii) The concise speech (khutbah)
A speech is recommended both at the time of the proposal and at the time of contracting the marriage. Khaleel emphasized that it should be brief.
In his magnificent literary opus Maqaalaatu’l-Udabaa’, the Grenadine
litterateur al-Fazaari reported this rare anecdote about a true happening:
“A man put forward a marriage proposal to a group of people, in whose control a woman’s marital destiny was.
The one assigned to give the wedding speech was brought. He started by praising Allah and then launched himself into a long-winded verbose talk, whereafter he sent prayers on the Prophet, , remembered Allah and the creation of the heavens and the earth, and recounted the stories of the bygone nations, to such an extent that those in attendance became irately incensed by his uncalled for prolixity.
The speaker then turned to the man who had proposed marriage and said to him, ‘What is your name, may Allah the Exalted raise you in might?’. He replied, ‘By Allah, I forgot my name due to the length of your sermon. She is divorced if I am married to her on the strength of this wedding speech.’
At that, the people laughed and departed, proceeding to sit in another gathering.”
Less is thus more.
It should contain laudation of Allah, the testimony of faith, and the prayer on the Prophet, Sallallaahu ‘alayhi wa-Sallam. After such deferential introduction, one should say something like:
«You who have iman! have taqwa of Allah and speak words which hit the mark correctly» [Soorah al-Ahzaab: 70]; «Have taqwa of Allah in whose Name you make demands on one another and also in respect of your families. Allah watches over you continually» [Soorah an-Nisaa’: 1], followed by the like of:
‘Thereafter (Ammaa ba`du).
So-and-so is verily eager for you and intends establishing relations of affinity through marriage concerning so-and-so your daughter. Let him, then, marry her.’ Thereupon, the guardian of the woman, after praising Allah and sending prayers of blessing and greetings of peace on His Messenger, should comment with a speech in the under-mentioned vein:
‘Thereafter. We have indeed acceded to such request.’
Trimmed down to simplicity and nobly effective.
It is said by our scholars that the khutbah at the time of the conclusion of the marriage contract should be initiated by the guardian of the wife via the verbalizing of commendation of Allah and the recitation of a suitably pertinent aayah from the Qur’aan. He then says the like of:
‘Thereafter. I have indeed married off my daughter, in return for such and such a dowry’, in which event the husband or his agent, after eulogizing Allah and sending prayers of blessing and mercy and greetings of peace on the Prophet, Sallallaahu ‘alayhi wa-Sallam, says in reply, ‘I have verily accepted to take her in marriage for myself’ or ‘for my principal’ (as the case may be) ‘in exchange for such and such a dowry.’
The famous khutbah al-haajah (speech of need), i.e. “Inna’l-hamda lillaahi nasta`eenuhu wa-na`oodhu bihi min-shoroori anfusinaa, etc” can be found by the participants in this course in Abu Daawud’s Sunan .
Dr. al-Ghiryaani stresses that it is recommended to conceal from the general community knowledge of the proposal, until the time for the actual contracting of the marriage arrives, so as to avoid artfully deceitful plots and interference from the grudging enviers and the people who thrive on corrupting things, including corrupting the mutual leaning of prospective spouses. Engagement parties are thus not only ostentatious but even conflicting to the sunnah of marriage proposals demanding reticence about them and the lack of public disclosure.
iii) The prohibited and disliked marriage proposals
A proposal is an introductory portal to marriage. Accordingly, the overarching principle or qaa`idah of the fiqh applies: “If it is impermissible to marry someone, it is likewise impermissible to propose to her / him”. It is also true, however, as we have seen regarding making a proposal over that of one’s fellow brother, that a demand for marriage might be forbidden though it would be permissible for such a suitor to marry the woman he proposes to.
a) Women one is forbidden to marry in the Law cannot be proposed to;
b) A woman who has already received a marriage proposal cannot be proposed to if mutual satisfaction and consent have already materialized (unless, as we said, the original suitor was a dissolute man who was no match to the later one, and that is so as to preserve the wellbeing of the Deen).
Ibn Juzayy defined the cause of the prohibition as the mere acceptance of the proposal or a mutual leaning and closeness between the two prospective spouses. He is also of the view that if a contract is concluded despite the said prohibition, it is not rescinded according to the stronger view (as he mentioned it first), that being also the position adopted by Abu Haneefah and ash-Shaafi`i, though he made mention of the contrary view, shared by the literalists, that it is so rescinded, as well as that it is rescinded only prior to sexual cohabitation and not subsequently thereto. The latter two views have been weakened by having been introduced by the passive verb qeela or “it is (also) said”.
There are thus three distinct views in the madhhab.
Dr. Ghiryaani, too, endorses the position contrary to that of Judge Abu Bakr b. al-‘Arabi, namely, that agreement on the named dowry is not a sabab or precondition for bringing the prohibition into existence.
What is given consideration to, in order to ascertain whether a mutual acceptance and consent have taken place, is the assent of the guardian in the event that the woman could be forcibly given out in marriage, and otherwise her own assent and endorsement of the proposal, and not those of either of her parents.
The Prophet, Sallallaahu ‘alayhi wa-Sallam, has been reported by Muslim in a sound hadeeth as having said: “A man cannot offer to purchase something over the purchase of his fellow brother, and cannot similarly propose marriage over the proposal of his coreligionist, unless the latter grants him authorization to do so.” [If he does so, any other suitor can step forward]. The dissolute person is excepted from the scope of this prohibition because he enjoys no recognized ties of brotherhood calling for their respect, due to his immorality.
No doubt, if a contract despite the prohibition has been entered into, it is recommended to rescind it so long as such encroachment on a fellow brother’s right is discovered prior to sexual cohabitation, even though such rescission has not been expressly prayed for by the original suitor, because of the need to pay heedful observance to Allah’s right and the need to protect it from a transgression [The weaker view that the contract is rescinded both prior to and after intercourse is premised on establishing an analogy between this scenario and the one of marrying somebody else’s wife. Cf. Ibn ‘Abdi’l-Barr’s Al-Kaafi *].
If the violation of the said ban is only discovered after cohabitation, the
marriage should be allowed to stand without being rescinded, due to the
principle of perpetrating the lesser of two evils. The woman, in fact, is free
from a prior contractual obligation in respect of the original suitor.
• Ibn ‘Abdi’l-Barr says therein: “It is permissible for a group of men to propose to a single woman, separately or collectively, so long as she has not reached agreement with one such suitor and leaned towards him. If she has so leaned towards his person, and has found reposeful settledness in his suit, it is not allowed to any other man to propose to her until the said suitor deflects away from his proposal or discards it, in which event it is licit for somebody else to propose to her.
• If one superimposes his proposal over that of his fellow brother after a mutual leaning and inclination to one another and a full verbalized reciprocal assent, and marries such a woman in violation of the said proposal, and the original suitor, whom the woman had reposefully inclined to and to whose proposal she had assented, makes a claim against the one who has contracted the marriage, the marriage entered into by the later suitor is annulled by faskh or rescission, whether before or after sexual cohabitation, exactly as if he had married somebody else’s wife. This has been related from Maalik.
• The ruling adopted by some of his followers is that such man’s marriage is rescinded before sexual cohabitation merely as a meritorious or mustahabb act, since such marriage amounts to an infringement of what is recommended in the matter, and wretched is the one who perpetrates such infringement. If he has had intercourse with her, the marriage stands and is not rescinded, since no other man had previously contracted a marriage with the woman. This is the detailed view of the madhhab and the position which is acted upon. In this subject, a number of divergent opinions and a certain degree of confusion has emanated from Maalik’s students.
Ibn ‘Abdi’l-Barr thus agrees with Ibn Juzayy as which of the three views is the correct one, which is shared by the other Imams and is consonant with the overarching principle of the fiqh that contracts are judged by the conditions of their own intrinsic validity, and not by the collateral agreements which served as preceding causes or motivations for their conclusion.
As we saw hereabove, in his lucid text Al-Ma`oonah, Judge ‘Abdu’l-Wahhaab considered a contract violating the said Prophetic veto to necessarily demand its annulment or rescission (faskh).
In mas’alah [1276] in his other work Al-Ishraaf, he said:
“If a man proposes to a woman, and she or her guardian gave the blessing to such a proposal, so that the suitor and the woman became bound by a mutual undertaking, cementing trust and firm leaning towards one another, and all that is left after that is the factual binding of the contractual knot or what approximates it, it is not allowed for any other man to propose to her. If he does and then contracts a marriage, the marriage is irregular or faasid according to the outward position of the madhhab. With regard to this scenario, two divergent views have been related from ash-Shaafi`i.
As regards the contract, there is only one view if it were to factually materialize, namely, that it is rescinded by faskh [Which would then take the form of one irrevocable pronouncement of divorce]..
Our proof of its proscription is his, Sallallaahu ‘alayhi wa-Sallam, interdiction of a man making a marriage proposal over that of his fellow brother, since that is a vehicle leading to the creation of corruption against people and the infliction of harm on them. Their interdiction from such an act therefore becomes incumbent.
As for the proof of the legal irregularity (fasaad, lit. corruption) of the contract if it were to be concluded, it consists in the fact that prohibition necessarily presupposes irregularity. Given what we have mentioned of the harmfulness of such conduct, it is necessary to shut the door firmly closed by declaring any contract concluded in this manner to be irregular, as a form of castigation for its doer and an interruption of detrimental harm.”
Taking by our said judge’s weaker view in the madhhab, if a presiding officer in a law suit established by proof or confession that the marriage contract was effected after mutual agreement had come to pass between the original suitor and the woman, the judicial decision-marker would be obligated to rescind the marriage unless the original suitor granted the contracting husband the indulgence to proceed with the marriage. If he grants such indulgence, no rescission takes place.
It is said however [cf. Ash-Sharhus-Sagheer] that even a number of proponents of this view only saw rescission as recommended. The renowned Egyptian author of the said commentary on Khaleel’s work added that, should the judge rule that the marriage violating the rules on proposals was legally valid, due to his belonging for instance to the Hanafi madhhab, there would be no room for judicially rescinding the contract.
NB: A void or baatil contract never existed legally, though it had a seeming existence in the sensorial world. Different is the scenario where a contract (which was) is later dissolved or cancelled. In such a case, there is a contract that has been concluded, and which produced its legal affects among the two contracting parties, yet, after it legally subsisted for a period of time, it ceases to exist, either by a volitional act (from one or both of the parties) or by other than a volitional act (just as the dissolving reality of death befalls a formerly living person).
If the contract is brought legally to a close by virtue of an act of volition, then its rescission is called faskh, viz. the loosening of the contractual knot.
If, by contrast, the contract ceases to exist as a consequence of a contingency which is not embedded in a volitional act, such dissolution thereof is called (by the passive form) infisaakh. Every contract the performance or execution of which becomes impossible, as with a sale where the sale object is destroyed prior to its delivery to the purchaser, self-dissolves by infisaakh.
We saw that Ibn ‘Abdi’l-Barr referred to the phrase “and the original suitor, whom the woman had reposefully inclined to and to whose proposal she had assented, makes a claim against the one who has contracted the marriage”, while other sources talk of an annulment regardless of whether the original suitor has objected to the continuing subsistence of the contract.
It is permissible for a man, who is acting as an agent to convey somebody else’s marriage proposal, to eventually ask for the same woman’s hand in marriage for himself, if a desire in her, following the acceptance of the said agency, were to be aroused. ‘Umar, radiyallaahu ‘anhu, did so, when Jareer b. ‘Abdillaah al-Bajali solicited him to propose on his behalf for a woman from the tribe of Daws. Thereafter, Marwaan b. al-Hakam asked ‘Umar to propose to her on his behalf, and that was followed by ‘Abdullaah b. ‘Umar, ‘Umar’s own son, entrusting to him the request to do so.
‘Umar visited the woman and conveyed to her his greetings. He sat down and praised Allah, lauded Him, and sent prayers on the Prophet, Sallallaahu ‘alayhi wa-Sallam, whereafter he said to her, ‘Jareer b. ‘Abdillaah al-Bajali proposes to so-and-so, and he is the chief of the people in the east. Marwaan b. al-Hakam, too, proposes to her, and he is the leader of Quraysh’s youth. Likewise she is proposed to by ‘Abdullaah b. ‘Umar, who is the one you know well. ‘Umar b. al-Khattaab, too, proposes to her.’
The woman then lifted off her veil and asked, ‘Is the Commander of the Believers serious?’. ‘Umar replied in the affirmative, and the Dawsiyyah, the woman from Daws, commented, ‘You have been given my hand in marriage, Commander of the Believers. Let him marry me.’ They did so, and she eventually gave birth to two sons of his [Cf. Ibn Rushd’s Al-Muqaddimaat al-Mumahhidaat, and Al-Ubbi’s commentary on Muslim, Ikmaalu’l-Ikmaal].
It is disliked to propose to a woman in ihraam, be it during Hajj or ‘Umrah. In Muslim’s collection the following narration is found: “The one in a state of ihraam neither marries nor is given to marriage, and does not propose a marriage.”
The savants have construed the interdiction in the hadeeth concerning the marriage proposal as a disliked act aimed at purifying people’s conduct, i.e. it is makrooh and not haraam [Cf. An-Nawaawi’s commentary on Muslim’s Saheeh].
It is likewise reprehensible to propose to and marry a woman who committed zinaa, even though such offence could not be judicially established, because of the Prophet’s, Sallallaahu ‘alayhi wa-Sallam, ban against such acts. It has been mentioned in the hadeeth transmitted on the authority of ‘Amr b. Shu`ayb from his father from his grandfather that Marthad b. Abi Marthad al-Ghanawi had a prostitute friend called ‘Anaaq. He said that he came to the Prophet, Sallallaahu ‘alayhi wa-Sallam, and he asked, ‘Messenger of Allah, do I marry ‘Anaaq?’. He [Sallallaahu ‘alayhi wa-Sallam] gave him no reply, whereupon the aayah was sent down: «A woman who has fornicated may only marry a man who has fornicated or a man of the mushrikoon» [Soorah an-Noor: 3]. Marthad went on to narrate: The Prophet summoned me to his person, and recited the aayah to me, whereafter he said: “Do not marry her” [Cf. Sunan Abi Daawud and al-Qurtubi’s Tafseer].
‘Anaaq was a kaafirah. If the zaaniyah is Muslim, a marriage contract with her is makrooh, but it is legally valid and cannot be rescinded on that ground. It is likewise disliked for a woman to marry a man who has fornicated.
If the zaaniyah has been married, it is meritorious to separate from her so as to safeguard honour, and in emulation of the hadeeth transmitted on the authority of Ibn ‘Abbaas, to the effect that he said: A man approached the Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, and said, ‘I have a woman who is one of the most beloved persons to me, but she does not reject the hand of a touching man.’ The Messenger of Allah, Sallallaahu ‘alayhi wa-Sallam, said, “Divorce her”, whereupon he remarked, ‘I cannot patiently endure to be cut off from her.’ He, Sallallaahu ‘alayhi wa-Sallam, thus commented, “Enjoy her.” The hadeeth, reported by an-Nasaa’i, is in truth mursal. The meaning of being unable to repel a palpating hand’s touch is that she could not resist the advances of other men. The instruction of enjoying him to keep her as spouse only meant that he should do so to the ultimate extent of his finding her company pleasurable, after which he should part ways with her. It is possible that the Prophet, Sallallaahu ‘alayhi wa-Sallam, felt that, had he enjoined on him the duty to separate from her at once, his self would have chased after her and he would have thus fallen into the haraam. A different interpretation that has been put forward of the semantic import of the phrase “she does not turn away a touching man’s hand” is that she would spend out of her wealth without declining the request of any beggar and petitioner. Imaam Ahmad b. Hanbal maintained that, had she been behaving licentiously, he, Sallallaahu ‘alayhi wa-Sallam, would not have ordered him to keep her with him, and Allah knows best.
In Al-Ishraaf ‘alaa Nukati’l-Khilaaf, Judge ‘Abdu’l-Wahhaab said about the mas’alah of “the zinaa by the woman does not annul the marriage” [1255] what is set out hereunder:
“If the woman commits zinaa, the nikaah is not rescinded, contrary to what has been narrated from al-Hasan, because of his statement, Sallallaahu ‘alayhi wa-Sallam, to the man who asked him and mentioned that she could not repel the hand of a palpating man, “Divorce her”, and, when he said that he loved her nevertheless, “then keep her” [The wording followed by the author of this text is that of an-Nasaa’i’s transmission. The hadeeth has also been reported by Abu Daawud, Book of Marriage, the chapter therein on the prohibition to marry an infertile woman]. A further corroborative proof of the said ruling is that if a husband acquiesces in any situation, the marriage is not rescinded. The same holds true if acquiescence is established without an explicit endorsement.”
In mas’alah number [1256], he tackles the reprehensibility of giving a zaaniyah in marriage, thus:
“It is disliked to give in marriage a woman known for her zinaa, though such a contract is permissible after granting a period for removing any suspicion concerning what is in her womb (…), contrary to those scholars who forbade such a contract. Our supporting proof is His statement, may He be Exalted: «Marry such women as are pleasing to you»[Soorah an-Nisaa’: 3]. A further proof is represented by the fact that zinaa is an intercourse which, similarly to an intercourse of dubious legality, does not render the penetrated woman haraam to the man sexually cohabiting with her.
However, marring off a zaaniyah is not allowed save after the said purifying and doubt-removing period (istibraa’). If she is pregnant, the period extends to the delivery of her child. Abu Haneefah and ash-Shaafi`i, by contrast, have both asserted that no istibraa’ is binding on her. Our proof is found in his statement, Sallallaahu ‘alayhi wa-Sallam, “Whoever believes in Allah and the Last Day should not let his “water” (= sperm) “irrigate somebody else’s tillage” [Cf. Abu Daawud, Book of Marriage, chapter on cohabiting sexually with concubines, on the authority of Rufay` b. Thaabit; and at-Tirmidhi, Book of Marriage, the chapter therein on what has been transmitted regarding the man who purchases a pregnant slave woman, also on Rufay`’s authority].
As Ibn Juzayy has remarked, it is haraam to explicitly propose marriage to a woman in her ‘iddah period, whereas an allusive proposal is in order, and he added that giving a present fell within the compass of legitimate allusive references to an intention to marry.
By ijmaa`, proposing to a woman divorced by revocable talaaq is strictly forbidden.
It is disputed among the scholars of Ahl as-Sunnah whether the permissibility of an allusive reference extends beyond the scenario of the widow to include the one of the woman divorced through a major separation while in her ‘iddah. Al-Bahruz-Zakhkhaar by Ibn al-Murtadaa, for instance, explicitly states that it not allowed to allusively propose marriage to a thrice divorced woman. He says that is so by ijmaa`, but the truth is that it is a disputed issue.
What is however the ruling if a man explicitly proposes to a woman in her ‘iddah or allusively does so when, in terms of a juristic view, not even such an allusion is permitted, and then contracts a marriage with her?
The general juristic opinion is that though the initial act ran counter to Allah’s command concerning legitimate marriage proposals, such a marriage after the completion of the ‘iddah period is legally valid. Maalik says that, purely as a recommended act without obligation, he gives her one divorce pronouncement and then marries her. The meritorious nature of such temporary separation is due to the reprehensibility of marrying after the ‘iddah a woman expressly proposed to during the ‘iddah [Cf. Ash-Sharhus-Sagheer by Dardeer].
In most places, the practice of giving gifts to a woman or her family at the time of the marriage proposal and even after it, has hardened into a custom. Such gifts include jewelry, clothing, foodstuffs and valuable animals. In some societies, the contrary usage has been established of the woman gifting the husband and his family some items such as silk fabrics and garments.
If such a practice has become an entrenched local custom, or it has been explicitly stipulated in the marriage contract, and litigation is instituted on the issue, the one claiming any such asset to be his is upheld unless, during the marriage proposal or in the marriage contract, the fellow litigant has stipulated that he / she would not be bound by such predominant usage.
What has become an embedded custom, in fact, is treated analogously to the ruling of an express contractual stipulation.
If the suitor had given something in gift to the woman he proposed to during the tenure of the marriage proposal, and the marriage proposal is subsequently rescinded, he is entitled to reclaim his gifts and demand that they be returned to him if the rescission was ascribable to her person. In the event that the prospective husband is the one who abandoned the proposal, he has no right to reclaim any such donated property.
If he has such right, he either recovers the asset when it is intact, or, in the case of its loss by consumption thereof, the applicable overarching principle on making things good is that he obtains the like of an object that has a like (like crops and fruits) or the value of what has a value (e.g. gold or clothes or animals) [Cf. Ad-Dardeer’s Ash-Sharhu’l-Kabeer].
In the next lesson, inshallaah, we shall step inside the second section, that is, the speech on the foundational pillars or arkaan of marriage, starting with the first such pillar, the formula or seeghah by which a marriage can be concluded in Islam.
Allaahumma Salli ‘alaa Sayyidinaa Muhammad wa’alaa aalihi wa-sahbihi wa-Sallam tasleeman katheeran
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Sidi, send me any graphics that you need included.
As-salaamu ‘alaykum,
for the details of the courses go to:
http://www.as-sulwaan.co.za
The registration part needs some final touches.
It should be finalized inshallaah by not later than this Friday, one way or the other.
The course material for the first lesson is ready to be scanned and mailed.
Ahmad ‘Ali
As-salaamu ‘alaykum,
the registration part is fully operative on http://www.as-sulwaan.co.za.
As I need to know who to send the course material to, can those who are going to participate in the courses mail me privately at klthm@myconnection.co.za indicating which course/s is he / are they taking?
Shukran muqaddaman,
Ahmad ‘Ali